Agricultural Marketing Service
Forest Service
Industry and Security Bureau
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
National Institutes of Health
Coast Guard
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
Alcohol, Tobacco, Firearms, and Explosives Bureau
Employment and Training Administration
Federal Aviation Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Transportation Statistics Bureau
Engraving and Printing Bureau
Internal Revenue Service
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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Federal Retirement Thrift Investment Board.
Final rule.
In accordance with the Privacy Act of 1974 (the Act) the Federal Retirement Thrift Investment Board (FRTIB) is exempting five systems of records from certain requirements of the Act.
This final rule is effective October 21, 2021.
Dharmesh Vashee, Senior Agency Official for Privacy and General Counsel, Federal Retirement Thrift Investment Board, Office of General Counsel, 77 K Street NE, Suite 1000, Washington, DC 20002, (202) 942-1600.
On August 13, 2021, FRTIB published a notice of proposed rulemaking in the
Comments were invited on the notice of proposed rulemaking (NPRM) published on August 13, 2021. No comments were received regarding this proposed rulemaking. The FRTIB will implement the rulemaking as proposed.
FRTIB received no comments on the NPRM.
FRTIB certifies that this regulation will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601,
I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act.
Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, 1501 1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under section 1532 is not required.
Pursuant to 5 U.S.C. 801(a)(1)(A), the Agency submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States before publication of this rule in the
Privacy.
Accordingly, FRTIB amends 5 CFR part 1630 as follows:
5 U.S.C. 552a.
(b) Those designated systems of records which are exempt from the requirements of subsections (c)(3); (d); (e)(1); (e)(4)(G), (H), (I); and (f) of the Privacy Act, 5 U.S.C. 552a, include FRTIB-2, Personnel Security Investigation Files; FRTIB-13, Fraud and Forgery Records; FRTIB-14, FRTIB Legal Case Files; FRTIB-15, Internal Investigations of Harassment and Hostile Work Environment Allegations; and FRTIB-23, Insider Threat Program Records.
Bureau of Industry and Security, Commerce.
Interim final rule, with request for comments.
This interim final rule outlines the progress the United States has made in export controls pertaining to cybersecurity items, revised Commerce Control List (CCL) implementation, and requests from the public information about the impact of these revised controls on U.S. industry and the cybersecurity community. Specifically, this rule establishes a new control on these items for National Security (NS) and Anti-terrorism (AT) reasons, along with a new License Exception Authorized Cybersecurity Exports (ACE) that authorizes exports of these items to most destinations except in the circumstances described. These items warrant controls because these tools could be used for surveillance, espionage, or other actions that disrupt, deny or degrade the network or devices on it.
Effective date: This rule is effective January 19, 2022. Comments must be received by BIS no later than December 6, 2021.
Comments on this rule may be submitted to the Federal rulemaking portal (
All filers using the portal should use the name of the person or entity submitting the comments as the name of their files, in accordance with the instructions below. Anyone submitting business confidential information should clearly identify the business confidential portion at the time of submission, file a statement justifying nondisclosure and referring to the specific legal authority claimed, and also provide a non-confidential version of the submission.
For comments submitted electronically containing business confidential information, the file name of the business confidential version should begin with the characters “BC.” Any page containing business confidential information must be clearly marked “BUSINESS CONFIDENTIAL” on the top of that page. The corresponding non-confidential version of those comments must be clearly marked “PUBLIC.” The file name of the non-confidential version should begin with the character “P.” Any submissions with file names that do not begin with either a “BC” or a “P” will be assumed to be public and will be made publicly available through
For questions regarding the Export Control Classification Numbers (ECCNs) included in this rule or License Exception ACE, contact Aaron Amundson at 202-482-0707 or email
In 2013, the Wassenaar Arrangement (WA) added cybersecurity items to the WA List, including a definition for “intrusion software.” The controls included hardware and software controls on the command and delivery platforms for “intrusion software,” the technology for the “development,” “production” or “use” of the command and delivery platforms, and the technology for the “development” of “intrusion software.” On May 20, 2015, the Bureau of Industry and Security (BIS) published a proposed rule describing how these new controls would fit into the Export Administration Regulations (EAR) and requested information from the public about the impact on U.S. industry. The public comments on the proposed rule revealed serious issues concerning scope and implementation regarding these controls. Based on these comments, as well as substantial commentary from Congress, the private sector, academia, civil society, and others on the potential unintended consequences of the 2013 controls, the U.S. government returned to the WA to renegotiate the controls.
In response to the proposed rule, BIS received almost 300 comments that raised substantial concerns about the proposed rule's scope and the impact the proposed rule would have on legitimate cybersecurity research and incident response activities. BIS also conducted extensive outreach with the security industry, financial institutions, and government agencies that manage cybersecurity.
Comments on the previously published proposed rule focused on three main issues. First, many commenters asserted that the entries were overly broad, captured more than was intended, and, as a technical matter, failed to accurately describe the items intended for control. Second, many commenters asserted that the rule as written imposed a heavy and unnecessary licensing burden on legitimate transactions that contribute to cybersecurity. Third, many commenters suggested that the proposed rule's control on technology for the “development” of “intrusion software” could cripple legitimate cybersecurity research.
Based on these comments, the United States decided against amending the proposed rule and instead returned to the WA in 2016 and 2017 to negotiate changes to the text. In December 2017, the WA published the changes that resulted from those negotiations. There were three significant changes: First, using “command and control” in the control language for both hardware and software addressed concerns from cybersecurity companies to more specifically control tools that can be used maliciously. Second, adding a note to the control entry for technology for the “development” of “intrusion software” that excludes from the entry “technology” that is exchanged for `vulnerability disclosure' or `cyber incident response'. Third, adding a note to the “software” generation, command and control, or delivery entry that excludes from this entry products designed and limited to providing basic software updates and upgrades.
BIS publishes this interim final rule to implement the WA 2017 decisions related to cybersecurity. The rule creates a new License Exception Authorized Cybersecurity Exports (ACE) that authorizes exports, reexports and transfers (in-country) of cybersecurity items, as described in more detail below, which are not also controlled in Category 5—Part 2 of the CCL or for Surreptitious Listening (SL) reasons.
In addition, BIS authorizes certain IP network surveillance products under the same License Exception ACE. These items were also part of the May 20, 2015 proposed rule but received far fewer comments than the other items in that proposed rule. BIS believes that making these products eligible for License Exception ACE addresses concerns raised in the comments on the previously published proposed rule.
BIS believes this rule implements the WA decision of 2013, as amended in 2017, with regard to cybersecurity items and addresses the concerns expressed by industry and others about the previously published proposed rule. Further, because of the limited scope of this rule, BIS believes the impact would be minimal. However, to ensure full consideration of the potential impact of this rule, BIS seeks public comment on this interim final rule, including comments on the potential cost of complying with this rule, and any impacts this rule has on legitimate cybersecurity activities.
No items subject to the International Traffic in Arms Regulations (ITAR) are being transferred to the EAR by this rule. Items and services described on the U.S. Munitions List (USML) at ITAR § 121.1, including military training, technical data directly related to a defense article, and certain hardware and software specially designed for intelligence purposes, remain subject to the ITAR. For software directly related to a defense article, see ITAR § 120.10(a)(4) and the applicable technical data entry in each USML category. See EAR § 734.3(b) and ITAR § 120.5(a) for more on the relationship between the ITAR and EAR.
ECCNs 4A005 and 4D004 are added, as well as a new paragraph 4E001.c, as set forth in the amendments described below. In addition, the existing definition for “intrusion software” found in § 772.1 of the EAR applies to the new ECCNs. The entries include the 2017 WA notes: An exclusion Note in 4D004 for software specially designed
Paragraph 5A001.j “IP network communications surveillance systems or equipment . . .” is added to ECCN 5A001. License Exception ACE eligibility is added for 5A001.j in part 740 “License Exception.” License Exception STA conditions are revised to remove eligibility for 5A001.j to destinations listed in Country Groups A:5 and A:6 (see Supplement No. 1 to part 740 of the EAR for Country Groups). License Exceptions GBS and LVS are also revised to remove eligibility for those license exceptions.
When a cybersecurity item also incorporates particular “information security” functionality specified in ECCNs 5A002.a, 5A004.a, 5A004.b, 5D002.c.1, or 5D002.c.3 Category 5—Part 2 of the CCL in Supplement No. 1 to part 774 of the EAR, these Category 5—Part 2 ECCNs prevail, provided the controlled “information security” functionality remains present and usable within the cybersecurity end item or executable “software.” Category 5—Part 2 does not apply to elements of source code or “technology” that implement functionality controlled in another Category, or to any item subject to the EAR where Encryption Item (EI) functionality is absent, removed or otherwise non-existent.
All items subject to the EAR that are controlled for Surreptitious Listening (SL) reasons under another ECCN not added by this rule will continue to be classified under the SL ECCN. The WA control list changes related to “intrusion software” and IP network communications surveillance systems do not affect or change any EAR provision regarding communications intercepting devices, “software” or “technology”, or any SL control (see § 742.13 of the EAR). If a circumstance arises where the item meets the control for national security (NS) because it meets the cybersecurity parameters, encryption item (EI) parameters, and SL parameters, then the control with the most restrictive licensing requirements applies, which would be SL control, because SL has worldwide control.
BIS is also establishing a new License Exception Authorized Cybersecurity Exports (ACE). This license exception, will appear in new § 740.22 of the EAR, is necessary to avoid impeding legitimate cybersecurity research and incident response activities. Cybersecurity items in the wrong hands raise both national security and foreign policy concerns. This license exception starts with a definition section that defines cybersecurity items, digital artifacts, favorable treatment cybersecurity end user, and government end user (for the purpose of § 740.22 only). `Cybersecurity Items' are defined in § 740.22 as ECCNs 4A005, 4D001.a (for 4A005 or 4D004), 4D004, 4E001.a (for 4A005, 4D001.a (for 4A005 or 4D004) or 4D004), 4E001.c, 5A001.j, 5B001.a (for 5A001.j), 5D001.a (for 5A001.j), 5D001.c (for 5A001.j or 5B001.a (for 5A001.j)), and 5E001.a (for 5A001.j or 5D001.a (for 5A001.j)).
License Exception ACE allows the export, reexport and transfer (in-country) of `cybersecurity items' to most destinations, except to destinations listed in Country Groups E:1 and E:2 of supplement no. 1 to part 740.
There are two types of end-user restrictions. Restricted end users include a `government end user,' as defined in § 740.22, of any country listed in Country Group D:1, D:2, D:3, D:4 or D:5 in supplement no. 1 to part 740, or a non-government end user located in a country listed in Country Group D:1 or D:5. For deemed exports, the `government end user' restriction applies, but not the `non-government end user' restriction.
There are exclusions to the end-user restrictions. The restriction on `government end users' does not apply to exports, reexports, and transfers (in-country) to Country Group D countries that are also listed in Country Group A:6, which includes Cyprus (A:6 and D:5), Israel (A:6 and D:2-4), and Taiwan (A:6 and D:3), of `digital artifacts' that are related to a cybersecurity incident involving information systems owned or operated by a `favorable treatment cybersecurity end user,' or to police or judicial bodies in Country Group D countries that are also listed in Country Group A:6 for purposes of criminal or civil investigations or prosecutions of such cybersecurity incidents. In addition, the restriction does not apply to exports, reexports, and transfers (in-country) to national computer security incident response teams in Country Group D countries that are also listed in Country Group A:6 of `cybersecurity items' for purposes of responding to cybersecurity incidents, for purposes of `vulnerability disclosure', or for purposes of criminal investigations or prosecutions of such cybersecurity incidents. For exports, reexports, or transfers (in-country) to `government end-users' under License Exception ACE, there is no exclusion for activities related to “vulnerability disclosure” and “cyber incident response.” However, Note 1 to ECCN 4E001 in the CCL (supplement no. 1 to part 774 of the EAR) excludes “vulnerability disclosure” and “cyber incident response” from control under 4E001.a or .c. The 4E001 exclusion note applies regardless of the type of end user and is unaffected by the restrictions in License Exception ACE.
The restriction on non-government end users in Country Group D:1 or D:5 does not apply to exports, reexports or transfers (in-country) of cybersecurity items classified under ECCNs 4A005, 4D001.a (for 4A005 or 4D004), 4D004, 4E001.a (for 4A005, 4D001.a (for 4A005 or 4D004) or 4D004) and 4E001.c to any `favorable treatment cybersecurity end user.' In addition, this restriction does not apply to “vulnerability disclosure” or “cyber incident response.”
Lastly, License Exception ACE has an end-use restriction. License Exception ACE is not authorized if the exporter, reexporter, or transferor knows or has reason to know at the time of export, reexport, or transfer (in-country), including a deemed export or reexport, that the `cybersecurity item' will be used to affect the confidentiality, integrity or availability of information or information systems, without authorization by the owner, operator, or administrator of the information system (including the information and processes within such systems).
BIS adds to § 772.1 the WA definitions for “cyber incident response,” and “vulnerability disclosure”, which are used in Category 4, new paragraph 4E001.c.
Because of the addition of the cybersecurity items to the CCL, some conforming changes need to occur. Notes are added to Category 4 and Category 5—Part 1 to address the overlap between these entries and other entries on the CCL, as further explained below.
To clarify the scope of existing entries in Category 5, Notes 3 and 4 are added to Category 4 stating that cybersecurity items that are specified by certain ECCNs in Category 5—Part 2 or in an ECCN controlled for SL reasons in Category 5—Part 1 would continue to be classified in those ECCNs instead of the new cybersecurity ECCN. In addition, these cybersecurity items are eligible for the license exceptions and are subject to the licensing policies applicable to those entries in Category 5—Part 2 or in the SL-controlled ECCNs.
Paragraph 4D001.a is revised to include 4A005. License Exception ACE eligibility is added for 4D001.a and License Exception STA special conditions are revised to include the ineligibility of software specified in 4D001.a “specially designed” for the “development” or “production” of equipment specified by ECCN 4A005 to Country Groups A:5 and A:6.
In addition to the revision that adds 4E001.c, License Exception ACE eligibility is added for 4E001.a (for 4A005 and 4D004) and 4E001.c. License Exception STA ineligibility is added for 4E001.a (for 4A005 and 4D004) and 4E001.c to destinations listed in Country Groups A:5 and A:6.
To clarify the scope of these entries and existing entries in Category 5 Parts 1 and 2, Notes 3 and 4 are added to Category 5—Part 1 identifying that cybersecurity items controlled in certain Category 5—Part 2 ECCNs will remain controlled in Category 5—Part 2 and are eligible for the license exceptions and are subject to the licensing policies applicable to those ECCNs. In addition, cybersecurity items specified in an ECCN controlled for SL reasons in Category 5—Part 1 continue to be classified in those ECCNs instead of the new cybersecurity ECCN.
License Exception ACE eligibility is added for 5B001.a (for equipment and “specially designed” “components” or “accessories” therefor, “specially designed” for the “development” or “production” of equipment, functions or features, controlled by 5A001.j). License Exception STA conditions are revised to remove eligibility for 5B001.a (for equipment and “specially designed” “components” or “accessories” therefor, “specially designed” for the “development” or “production” of equipment, functions or features, controlled by 5A001.j) to destinations listed in Country Groups A:5 and A:6 (See Supplement No. 1 to part 740 of the EAR for Country Groups). License Exceptions LVS and GBS are revised to remove eligibility for 5B001.a (for 5A001.j).
License Exception ACE eligibility is added for 5D001.a (for equipment, functions or features specified by 5A001.j) and 5D001.c (for equipment specified by 5A001.j or 5B001.a). License Exception STA conditions are revised to remove eligibility for 5D001.a (for equipment, functions or features specified by 5A001.j) and 5D001.c (for equipment specified by 5A001.j or 5B001.a) to destinations listed in Country Groups A:5 and A:6 (See Supplement No. 1 to part 740 of the EAR for Country Groups). License Exception TSR is revised to remove eligibility for “software” classified under ECCN 5D001.a (for 5A001.j) or 5D001.c (for 5A001.j or 5B001.a (for 5A001.j)).
License Exception ACE eligibility is added for 5E001.a (for 5A001.j, 5B001.a (for 5A001.j), 5D001.a (for 5A001.j), or 5D001.c (for 5A001.j or 5B001.a (for 5A001.j)). License Exception STA conditions is revised to remove eligibility for 5E001.a (for 5A001.j, 5B001.a (for 5A001.j), 5D001.a (for 5A001.j), or 5D001.c (for 5A001.j or 5B001.a (for 5A001.j)) to destinations listed in Country Groups A:5 and A:6 (See Supplement No. 1 to part 740 of the EAR for Country Groups). License Exception TSR is revised to remove eligibility for “technology” classified under ECCN 5E001.a for 5A001.j, 5B001.a (for 5A001.j), ECCN 5D001.a (for 5A001.j), or 5D001.c (for 5A001.j or 5B001.a (for 5A001.j)).
This rule also amends ECCN 5A004 to add 4A005 to 5A004.b. This is done to harmonize with the WA Dual-Use List now that ECCN 4A005 has been added to the CCL.
License Exception GOV is amended to exclude cybersecurity items, as defined in § 740.22 License Exception ACE, from paragraph (c) of License Exception GOV. As such, this rule revises paragraph (c)(3)(vi) to remove “or” and to revise paragraph (c)(3)(vii) to replace the period with a semi-colon and “or.” Lastly, paragraph (c)(3)(viii) is added to exclude “cybersecurity items as defined in § 740.22(b)(1) of the EAR.”
On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA), 50 U.S.C. Sections 4801-4852. ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this proposed rule.
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This interim final rule has been designated a “significant regulatory action” under Executive Order 12866.
This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.
This rule involves collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
For the existing ECCNs included in this rule (4D001, 4E001, 5A001, 5A004, 5D001, 5E001), the 2020 data from the Automated Export System (AES) shows 980 shipments valued at $39,146,164. Of those shipments, 120 shipments valued at $1,864,699 went to Country Group D:1 or D:5 countries, which would make them ineligible for License Exception ACE. There were no shipments to Country Group E:1 or E:2. Under the provisions of this rule, the 120 shipments require a license application submission to BIS.
As there is no specific ECCN data in AES for the new export controls in new ECCNs 4A005 and 4D004 or new paragraph 4E001.c, BIS uses other data to estimate the number of shipments of these new ECCNs that will require a license. Bureau of Economic Analysis (BEA) data from 2019 show a total dollar value of $55,657 million for Telecom, Computer, and Information Technology Services exports. Multiplying this value by 12.1% (the percentage of all exports that are subject to an EAR license requirement as determined by using AES data) suggests that $6,734,497,000 of Telecom/Computer/IT exports are now subject to EAR license requirements. Based on AES data on the existing ECCNs affected by this rule, BIS estimates the average value of each shipment for the new ECCNs at about $40,000, and further estimates that 0.6% of all new ECCN shipments (1,010 shipments) are now eligible for License Exception ACE and 0.03% of all new ECCN shipments (50 shipments) require a license application submission.
Therefore, the annual total estimated cost associated with the paperwork burden imposed by this rule (that is, the projected increase of license application submissions based on the additional shipments requiring a license) is estimated to be 170 new applications × 29.6 minutes = 5,032/60 min = 84 hours × $30 = $2,520.
There is no paperwork submission to BIS associated with using License Exception ACE, and therefore there is no increase to any paperwork burden or information collection cost associated with License Exception ACE requirements in this rule.
Any comments regarding these burden estimates or any other aspect of these collections of information, including suggestions for reducing the burden, may be submitted online at
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Pursuant to Section 4821 of ECRA, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking and opportunity for public participation.
Further, no other law requires notice of proposed rulemaking or opportunity for public comment for this interim final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Exports.
Exports, Reporting and recordkeeping requirements.
Accordingly, parts 740, 772, and 774 of the Export Administration Regulations (15 CFR parts 730 through 774) are amended as follows:
50 U.S.C. 4801-4852; 50 U.S.C. 4601
(c) * * *
(3) * * *
(vi) Items controlled for nuclear nonproliferation (NP) reasons;
(vii) Items listed as not eligible for License Exception STA in § 740.20(b)(2)(ii) of the EAR; or
(viii) Cybersecurity items as defined in § 740.22(b)(1) of the EAR.
(a)
(b)
(1)
(2)
(3)
(i) A “U.S. subsidiary”;
(ii) Providers of banking and other financial services;
(iii) Insurance companies; or
(iv) Civil health and medical institutions providing medical treatment or otherwise conducting the practice of medicine, including medical research.
(4)
(c)
(1)
(i) A destination that is listed in Country Group E:1 or E:2 in supplement no.1 to part 740 of the EAR.
(ii) A
(A) Exports, reexports, and transfers (in-country) to Country Group D countries that are also listed in Country Group A:6 of `digital artifacts' that are related to a cybersecurity incident involving information systems owned or operated by a `favorable treatment cybersecurity end user', or to police or judicial bodies in Country Group D countries that are also listed in Country Group A:6 for purposes of criminal or civil investigations or prosecutions of such cybersecurity incidents; or
(B) Exports, reexports, and transfers (in-country) to national computer security incident response teams in Country Group D countries that are also listed in Country Group A:6 of `cybersecurity items' for purposes of responding to cybersecurity incidents, for purposes of `vulnerability disclosure', or for purposes of criminal or civil investigations or prosecutions of such cybersecurity incidents.
(iii) A non-government end user located in any country listed in Country Group D:1 or D:5 of Supplement No. 1 to part 740 of the EAR. This restriction does not apply to:
(A) Exports, reexports or transfers (in-country) of cybersecurity items classified under ECCNs 4A005, 4D001.a (for 4A005 or 4D004), 4D004, 4E001.a (for 4A005, 4D001.a (for 4A005 or 4D004) or 4D004) and 4E001.c, to any `favorable treatment cybersecurity end user;'
(B) “Vulnerability disclosure” or “cyber incident response;”or
(C) Deemed exports.
(2)
50 U.S.C. 4801-4852; 50 U.S.C. 4601
50 U.S.C. 4801-4852; 50 U.S.C. 4601
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions, and Validated End-User authorizations.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions, and Validated End-User authorizations.
(1) Commodities with an “Adjusted Peak Performance” (“APP”) exceeding 29 WT; or
(2) Commodities controlled by 4A005 or “software” controlled by 4D004.
a. “Software” “specially designed” or modified for the “development” or “production”, of equipment or “software” controlled by 4A001, 4A003, 4A004, 4A005 or 4D (except 4D980, 4D993 or 4D994).
b. “Software”, other than that controlled by 4D001.a, “specially designed” or modified for the “development” or “production” of equipment as follows:
b.1. “Digital computers” having an “Adjusted Peak Performance” (“APP”) exceeding 15 Weighted TeraFLOPS (WT);
b.2. “Electronic assemblies” “specially designed” or modified for enhancing performance by aggregation of processors so that the “APP” of the aggregation exceeds the limit in 4D001.b.1.
The list of items controlled is contained in the ECCN heading.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions, and Validated End-User authorizations.
(1) “Technology” for the “development” or “production” of commodities with an “Adjusted Peak Performance” (“APP”) exceeding 29 WT or for the “development” or “production” of commodities controlled by 4A005 or “software” controlled by 4D004; or
(2) “Technology” for the “development” of “intrusion software”.
a. “Technology” according to the General Technology Note, for the “development”, “production”, or “use” of equipment or “software” controlled by 4A (except 4A980 or 4A994) or 4D (except 4D980, 4D993, 4D994).
b. “Technology” according to the General Technology Note, other than that controlled by 4E001.a, for the “development” or “production” of equipment as follows:
b.1. “Digital computers” having an “Adjusted Peak Performance” (“APP”) exceeding 15 Weighted TeraFLOPS (WT);
b.2. “Electronic assemblies” “specially designed” or modified for enhancing performance by aggregation of processors so that the “APP” of the aggregation exceeds the limit in 4E001.b.1.
c. “Technology” for the “development” of “intrusion software.”
3. Commodities in ECCN 5A001.j, and related “software” specified in 5D001.c (for 5A001.j) that are also controlled in ECCNs 5A002.a, 5A004.a, 5A004.b, 5D002.c.1, or 5D002.c.3, remain controlled in Category 5—Part 2 by those entries. Category 5—Part 2 does not apply to elements of source code that implement functionality controlled by these Category 5 Part 1 ECCNs, or to any item subject to the EAR where Encryption Item (EI) functionality is absent, removed or otherwise non-existent.
4. Items in ECCN 5A001.j, 5B001.a (for 5A001.j), related “software” specified in 5D001.a (for 5A001.j) and 5D001.c (for 5A001.j or 5B001.a (for 5A001.j)) and related “technology” specified in ECCN 5E001.a (for 5A001.j and 5D001.a (for 5A001.j)) that are also controlled for Surreptitious Listening (SL) reasons under another ECCN, will continue to be classified under the SL ECCN.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions, and Validated End-User authorizations.
a. Any type of telecommunications equipment having any of the following characteristics, functions or features:
a.1. “Specially designed” to withstand transitory electronic effects or electromagnetic pulse effects, both arising from a nuclear explosion;
a.2. Specially hardened to withstand gamma, neutron or ion radiation;
a.3. “Specially designed” to operate below 218 K (−55 °C);
a.4. “Specially designed” to operate above 397 K (124 °C);
b. Telecommunication systems and equipment, and “specially designed” “components” and “accessories” therefor, having any of the following characteristics, functions or features:
b.1 Being underwater untethered communications systems having any of the following:
b.1.a. An acoustic carrier frequency outside the range from 20 kHz to 60 kHz;
b.1.b. Using an electromagnetic carrier frequency below 30 kHz;
b.1.c. Using electronic beam steering techniques;
b.1.d. Using “lasers” or light-emitting diodes (LEDs), with an output wavelength greater than 400 nm and less than 700 nm, in a “local area network”;
b.2. Being radio equipment operating in the 1.5 MHz to 87.5 MHz band and having all of the following:
b.2.a. Automatically predicting and selecting frequencies and “total digital transfer rates” per channel to optimize the transmission;
b.2.b. Incorporating a linear power amplifier configuration having a capability to support multiple signals simultaneously at an output power of 1 kW or more in the frequency range of 1.5 MHz or more but less than 30 MHz, or 250 W or more in the frequency range of 30 MHz or more but not exceeding 87.5 MHz, over an “instantaneous bandwidth” of one octave or more and with an output harmonic and distortion content of better than −80 dB;
b.3. Being radio equipment employing “spread spectrum” techniques, including “frequency hopping” techniques, not controlled in 5A001.b.4 and having any of the following:
b.3.a. User programmable spreading codes;
b.3.b. A total transmitted bandwidth which is 100 or more times the bandwidth of any one information channel and in excess of 50 kHz;
b.4. Being radio equipment employing ultra-wideband modulation techniques, having user programmable channelizing codes, scrambling codes, or network identification codes and having any of the following:
b.4.a. A bandwidth exceeding 500 MHz;
b.4.b. A “fractional bandwidth” of 20% or more;
b.5. Being digitally controlled radio receivers having all of the following:
b.5.a. More than 1,000 channels;
b.5.b. A `channel switching time' of less than 1 ms;
b.5.c. Automatic searching or scanning of a part of the electromagnetic spectrum;
b.5.d. Identification of the received signals or the type of transmitter;
b.6. Employing functions of digital “signal processing” to provide 'voice coding' output at rates of less than 700 bit/s.
c. Optical fibers of more than 500 m in length and specified by the manufacturer as being capable of withstanding a `proof test' tensile stress of 2 × 10
d. “Electronically steerable phased array antennae” as follows:
d.1. Rated for operation above 31.8 GHz, but not exceeding 57 GHz, and having an Effective Radiated Power (ERP) equal to or greater than +20 dBm (22.15 dBm Effective Isotropic Radiated Power (EIRP));
d.2. Rated for operation above 57 GHz, but not exceeding 66 GHz, and having an ERP equal to or greater than +24 dBm (26.15 dBm EIRP);
d.3. Rated for operation above 66 GHz, but not exceeding 90 GHz, and having an ERP equal to or greater than +20 dBm (22.15 dBm EIRP);
d.4. Rated for operation above 90 GHz;
e. Radio direction finding equipment operating at frequencies above 30 MHz and having all of the following, and “specially designed” “components” therefor:
e.1. “Instantaneous bandwidth” of 10 MHz or more; and
e.2. Capable of finding a Line Of Bearing (LOB) to non-cooperating radio transmitters with a signal duration of less than 1 ms;
f. Mobile telecommunications interception or jamming equipment, and monitoring equipment therefor, as follows, and “specially designed” “components” therefor:
f.1. Interception equipment designed for the extraction of voice or data, transmitted over the air interface;
f.2. Interception equipment not specified in 5A001.f.1, designed for the extraction of client device or subscriber identifiers (
f.3. Jamming equipment “specially designed” or modified to intentionally and selectively interfere with, deny, inhibit, degrade or seduce mobile telecommunication services and performing any of the following:
f.3.a. Simulate the functions of Radio Access Network (RAN) equipment;
f.3.b. Detect and exploit specific characteristics of the mobile telecommunications protocol employed (
f.3.c. Exploit specific characteristics of the mobile telecommunications protocol employed (
f.4. Radio Frequency (RF) monitoring equipment designed or modified to identify the operation of items specified in 5A001.f.1, 5A001.f.2 or 5A001.f.3.
g. Passive Coherent Location (PCL) systems or equipment, “specially designed” for detecting and tracking moving objects by measuring reflections of ambient radio frequency emissions, supplied by non-radar transmitters.
h. Counter Improvised Explosive Device (IED) equipment and related equipment, as follows:
h.1. Radio Frequency (RF) transmitting equipment, not specified by 5A001.f, designed or modified for prematurely activating or preventing the initiation of Improvised Explosive Devices (IEDs);
h.2. Equipment using techniques designed to enable radio communications in the same frequency channels on which co-located equipment specified by 5A001.h.1 is transmitting.
i. [Reserved]
j. IP network communications surveillance systems or equipment, and “specially
j.1. Performing all of the following on a carrier class IP network (
j.1.a. Analysis at the application layer (
j.1.b. Extraction of selected metadata and application content (
j.1.c. Indexing of extracted data;
j.2. Being “specially designed” to carry out all of the following:
j.2.a. Execution of searches on the basis of “hard selectors”;
j.2.b. Mapping of the relational network of an individual or of a group of people.
a. Marketing purpose;
b. Network Quality of Service (QoS);
c. Quality of Experience (QoE).
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions, and Validated End-User authorizations.
a. Equipment and “specially designed” “components” or “accessories” therefor, “specially designed” for the “development” or “production” of equipment, functions or features, controlled by 5A001;
b. Equipment and “specially designed” “components” or “accessories” therefor, “specially designed” for the “development” of any of the following telecommunication transmission or switching equipment:
b.1. [Reserved]
b.2. Equipment employing a “laser” and having any of the following:
b.2.a. A transmission wavelength exceeding 1750 nm; or
b.2.b. [Reserved]
b.2.c. [Reserved]
b.2.d. Employing analog techniques and having a bandwidth exceeding 2.5 GHz; or
b.3. [Reserved]
b.4. Radio equipment employing Quadrature-Amplitude-Modulation (QAM) techniques above level 1,024.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions, and Validated End-User authorizations.
a. “Software” “specially designed” or modified for the “development”, “production” or “use” of equipment, functions or features controlled by 5A001;
b. [Reserved]
c. Specific “software” “specially designed” or modified to provide characteristics, functions or features of equipment, controlled by 5A001 or 5B001;
d. “Software” “specially designed” or modified for the “development” of any of the following telecommunication transmission or switching equipment:
d.1.[Reserved]
d.2. Equipment employing a “laser” and having any of the following:
d.2.a. A transmission wavelength exceeding 1,750 nm;
d.2.b. Employing analog techniques and having a bandwidth exceeding 2.5 GHz;
d.3. [Reserved]
d.4. Radio equipment employing Quadrature-Amplitude-Modulation (QAM) techniques above level 1,024.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions, and Validated End-User authorizations.
(1) Items controlled by 5A001.b.5, .h or .j;
(2) “Software” controlled by 5D001.a that is “specially designed” for the “development” or “production” of equipment, functions or features controlled by 5A001.b.5, 5A001.h, 5A001.j, or 5B001.a (for 5A001.j); or
(3) “Software” controlled by 5D001.c (for 5A001.j or 5B001.a (for 5A001.j)).
a. “Technology” according to the General Technology Note for the “development”, “production” or “use” (excluding operation) of equipment, functions or features, controlled by 5A001 or “software” controlled by 5D001.a.
b. Specific “technology”, as follows:
b.1. “Technology” “required” for the “development” or “production” of telecommunications equipment “specially designed” to be used on board satellites;
b.2. “Technology” for the “development” or “use” of “laser” communication techniques with the capability of automatically acquiring and tracking signals and maintaining communications through exoatmosphere or sub-surface (water) media;
b.3. “Technology” for the “development” of digital cellular radio base station receiving equipment whose reception capabilities that allow multi-band, multi-channel, multi-mode, multi-coding algorithm or multi-protocol operation can be modified by changes in “software”;
b.4. “Technology” for the “development” of “spread spectrum” techniques, including “frequency hopping” techniques.
c. “Technology” according the General Technology Note for the “development” or “production” of any of the following:
c.1. [Reserved]
c.2. Equipment employing a “laser” and having any of the following:
c.2.a. A transmission wavelength exceeding 1,750 nm;
c.2.b. [Reserved]
c.2.c. [Reserved]
c.2.d. Employing wavelength division multiplexing techniques of optical carriers at less than 100 GHz spacing;
c.2.e. Employing analog techniques and having a bandwidth exceeding 2.5 GHz;
c.3. Equipment employing “optical switching” and having a switching time less than 1 ms;
c.4. Radio equipment having any of the following:
c.4.a. Quadrature-Amplitude-Modulation (QAM) techniques above level 1,024;
c.4.b. Operating at input or output frequencies exceeding 31.8 GHz;
c.4.c. Operating in the 1.5 MHz to 87.5 MHz band and incorporating adaptive techniques providing more than 15 dB suppression of an interfering signal;
c.5. [Reserved]
c.6. Mobile equipment having all of the following:
c.6.a. Operating at an optical wavelength greater than or equal to 200nm and less than or equal to 400nm;
c.6.b. Operating as a “local area network”;
d. “Technology” according to the General Technology Note for the “development” or “production” of “Monolithic Microwave Integrated Circuit” (“MMIC”) amplifiers “specially designed” for telecommunications and that are any of the following:
d.1. Rated for operation at frequencies exceeding 2.7 GHz up to and including 6.8 GHz with a “fractional bandwidth” greater than 15%, and having any of the following:
d.1.a. A peak saturated power output greater than 75 W (48.75 dBm) at any
d.1.b. A peak saturated power output greater than 55 W (47.4 dBm) at any frequency exceeding 2.9 GHz up to and including 3.2 GHz;
d.1.c. A peak saturated power output greater than 40 W (46 dBm) at any frequency exceeding 3.2 GHz up to and including 3.7 GHz;
d.1.d. A peak saturated power output greater than 20 W (43 dBm) at any frequency exceeding 3.7 GHz up to and including 6.8 GHz;
d.2. Rated for operation at frequencies exceeding 6.8 GHz up to and including 16 GHz with a “fractional bandwidth” greater than 10%, and having any of the following:
d.2.a. A peak saturated power output greater than 10W (40 dBm) at any frequency exceeding 6.8 GHz up to and including 8.5 GHz; or
d.2.b. A peak saturated power output greater than 5W (37 dBm) at any frequency exceeding 8.5 GHz up to and including 16 GHz;
d.3. Rated for operation with a peak saturated power output greater than 3 W (34.77 dBm) at any frequency exceeding 16 GHz up to and including 31.8 GHz, and with a “fractional bandwidth” of greater than 10%;
d.4. Rated for operation with a peak saturated power output greater than 0.1n W (-70 dBm) at any frequency exceeding 31.8 GHz up to and including 37 GHz;
d.5. Rated for operation with a peak saturated power output greater than 1 W (30 dBm) at any frequency exceeding 37 GHz up to and including 43.5 GHz, and with a “fractional bandwidth” of greater than 10%;
d.6. Rated for operation with a peak saturated power output greater than 31.62 mW (15 dBm) at any frequency exceeding 43.5 GHz up to and including 75 GHz, and with a “fractional bandwidth” of greater than 10%;
d.7. Rated for operation with a peak saturated power output greater than 10 mW (10 dBm) at any frequency exceeding 75 GHz up to and including 90 GHz, and with a “fractional bandwidth” of greater than 5%; or
d.8. Rated for operation with a peak saturated power output greater than 0.1 nW (−70 dBm) at any frequency exceeding 90 GHz;
e. “Technology” according to the General Technology Note for the “development” or “production” of electronic devices and circuits, “specially designed” for telecommunications and containing “components” manufactured from “superconductive” materials, “specially designed” for operation at temperatures below the “critical temperature” of at least one of the “superconductive” constituents and having any of the following:
e.1. Current switching for digital circuits using “superconductive” gates with a product of delay time per gate (in seconds) and power dissipation per gate (in watts) of less than 10
e.2. Frequency selection at all frequencies using resonant circuits with Q-values exceeding 10,000.
a. Designed or modified to perform `cryptanalytic functions.'
b. Items, not specified by ECCNs 4A005 or 5A004.a, designed to perform all of the following:
b.1. `Extract raw data' from a computing or communications device;
b.2. Circumvent “authentication” or authorisation controls of the device, in order to perform the function described in 5A004.b.1.
Office of the Secretary, U.S. Department of Homeland Security; U.S. Customs and Border Protection, U.S. Department of Homeland Security.
Notification of continuation of temporary travel restrictions.
This Notification announces the decision of the Secretary of Homeland Security (Secretary) to continue to temporarily limit the non-essential travel of individuals from Mexico into the United States at land ports of entry along the United States-Mexico border. This Notification further announces that the Secretary intends to lift these limitations for individuals who are fully vaccinated for COVID-19 (as defined by the Centers for Disease Control and Prevention) to align with anticipated changes to international travel by air.
This Notification goes into effect at 12 a.m. Eastern Daylight Time (EDT) on October 22, 2021 and will remain in effect until 11:59 p.m. Eastern Standard Time (EST) on January 21, 2022, unless amended or rescinded prior to that time.
Stephanie Watson, Office of Field Operations Coronavirus Coordination Cell, U.S. Customs and Border Protection (CBP) at 202-325-0840.
On March 24, 2020, DHS published notice of its decision to temporarily limit the travel of individuals from Mexico into the United States at land ports of entry along the United States-Mexico border to “essential travel,” as further defined in that document.
DHS continues to monitor and respond to the COVID-19 pandemic. As of the week of October 13, 2021, there have been over 237 million confirmed cases globally, with over 4.8 million confirmed deaths.
Notwithstanding these realities, vaccines are effective against Delta and other known variants, protecting people from getting infected and severely ill, as well as significantly reducing the likelihood of hospitalization and death, according to the CDC.
Therefore, this Notification extends the limits on non-essential travel and also announces the Secretary's intent to lift these restrictions for certain such individuals who are fully vaccinated.
Given the outbreak and continued transmission and spread of COVID-19 within the United States and globally, I have determined that the risk of continued transmission and spread of the virus associated with COVID-19 between the United States and Mexico poses an ongoing “specific threat to human life or national interests.”
In March 2020, U.S. and Mexican officials mutually determined that non-essential travel between the United States and Mexico posed additional risk of transmission and spread of the virus associated with COVID-19 and placed the populace of both nations at increased risk of contracting the virus associated with COVID-19. Given the sustained human-to-human transmission of the virus, coupled with risks posed by new variants, non-essential travel to the United States places the personnel staffing land ports of entry between the United States and Mexico, as well as the individuals traveling through these ports of entry, at increased risk of exposure to the virus associated with COVID-19. Accordingly, and consistent with the authority granted in 19 U.S.C. 1318(b)(1)(C) and (b)(2),
For purposes of the temporary alteration in certain designated ports of entry operations authorized under 19 U.S.C. 1318(b)(1)(C) and (b)(2), travel through the land ports of entry and ferry terminals along the United States-Mexico border shall be limited to “essential travel,” which includes, but is not limited to—
• U.S. citizens and lawful permanent residents returning to the United States;
• Individuals traveling for medical purposes (
• Individuals traveling to attend educational institutions;
• Individuals traveling to work in the United States (
• Individuals traveling for emergency response and public health purposes (
• Individuals engaged in lawful cross-border trade (
• Individuals engaged in official government travel or diplomatic travel;
• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
• Individuals engaged in military-related travel or operations.
The following travel does not fall within the definition of “essential travel” for purposes of this Notification—
• Individuals traveling for tourism purposes (
At this time, this Notification does not apply to air, freight rail, or sea travel between the United States and Mexico, but does apply to passenger rail, passenger ferry travel, and pleasure boat travel between the United States and Mexico. These restrictions are temporary in nature and shall remain in effect until 11:59 p.m. EST on January 21, 2022. These restrictions also can be modified by the Secretary at any point prior to January 21, 2022 to allow non-essential travel through land ports of entry and ferry terminals for individuals who are fully vaccinated and have appropriate proof of vaccination. Any such modifications to the restrictions will be accomplished via a posting o to the DHS website (
The CBP Commissioner is hereby directed to prepare and distribute appropriate guidance to CBP personnel on the continued implementation of the temporary measures set forth in this Notification including any appropriate procedures regarding the lifting of restrictions for fully vaccinated travelers. The CBP Commissioner may determine that other forms of travel, such as travel in furtherance of economic stability or social order, constitute “essential travel” under this Notification. Further, the CBP Commissioner may, on an individualized basis and for humanitarian reasons or for other purposes in the national interest, permit the processing of travelers to the United States not engaged in “essential travel.”
Office of the Secretary, U.S. Department of Homeland Security; U.S. Customs and Border Protection, U.S. Department of Homeland Security.
Notification of continuation of temporary travel restrictions.
This Notification announces the decision of the Secretary of Homeland Security (Secretary) to continue to temporarily limit the non-essential travel of individuals from Canada into the United States at land ports of entry along the United States-Canada border. This Notification further announces that the Secretary intends to lift these limitations for individuals who are fully vaccinated for COVID-19 (as defined by the Centers for Disease Control and Prevention) to align with anticipated changes to international travel by air.
This notification goes into effect at 12 a.m. Eastern Daylight Time (EDT) on October 22, 2021 and will remain in effect until 11:59 p.m. Eastern Standard Time (EST) on January 21, 2022, unless amended or rescinded prior to that time.
Stephanie Watson, Office of Field Operations Coronavirus Coordination Cell, U.S. Customs and Border Protection (CBP) at 202-325-0840.
On March 24, 2020, DHS published notice of its decision to temporarily limit the travel of individuals from Canada into the United States at land ports of entry along the United States-Canada border to “essential travel,” as further defined in that document.
DHS continues to monitor and respond to the COVID-19 pandemic. As of the week of October 13, 2021, there have been over 237 million confirmed cases globally, with over 4.8 million
Notwithstanding these realities, vaccines are effective against Delta and other known variants, protecting people from getting infected and severely ill, as well as significantly reducing the likelihood of hospitalization and death, according to the CDC.
Therefore, this Notification extends the limits on non-essential travel and also announces the Secretary's intent to lift these restrictions for certain such individuals who are fully vaccinated.
Given the outbreak and continued transmission and spread of COVID-19 within the United States and globally, I have determined that the risk of continued transmission and spread of the virus associated with COVID-19 between the United States and Canada poses an ongoing “specific threat to human life or national interests.”
In March 2020, U.S. and Canadian officials mutually determined that non-essential travel between the United States and Canada posed additional risk of transmission and spread of the virus associated with COVID-19 and placed the populace of both nations at increased risk of contracting the virus associated with COVID-19. Given the sustained human-to-human transmission of the virus, coupled with risks posed by new variants, non-essential travel to the United States places the personnel staffing land ports of entry between the United States and Canada, as well as the individuals traveling through these ports of entry, at increased risk of exposure to the virus associated with COVID-19. Accordingly, and consistent with the authority granted in 19 U.S.C. 1318(b)(1)(C) and (b)(2),
For purposes of the temporary alteration in certain designated ports of entry operations authorized under 19 U.S.C. 1318(b)(1)(C) and (b)(2), travel through the land ports of entry and ferry terminals along the United States-Canada border shall be limited to “essential travel,” which includes, but is not limited to—
• U.S. citizens and lawful permanent residents returning to the United States;
• Individuals traveling for medical purposes (
• Individuals traveling to attend educational institutions;
• Individuals traveling to work in the United States (
• Individuals traveling for emergency response and public health purposes (
• Individuals engaged in lawful cross-border trade (
• Individuals engaged in official government travel or diplomatic travel;
• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
• Individuals engaged in military-related travel or operations.
The following travel does not fall within the definition of “essential travel” for purposes of this Notification—
• Individuals traveling for tourism purposes (
At this time, this Notification does not apply to air, freight rail, or sea travel between the United States and Canada, but does apply to passenger rail, passenger ferry travel, and pleasure boat travel between the United States and Canada. These restrictions are temporary in nature and shall remain in effect until 11:59 p.m. EST on January 21, 2022. These restrictions also can be modified by the Secretary at any point prior to January 21, 2022 to allow non-
The CBP Commissioner is hereby directed to prepare and distribute appropriate guidance to CBP personnel on the continued implementation of the temporary measures set forth in this Notification including any appropriate procedures regarding the lifting of restrictions for fully vaccinated travelers. The CBP Commissioner may determine that other forms of travel, such as travel in furtherance of economic stability or social order, constitute “essential travel” under this Notification. Further, the CBP Commissioner may, on an individualized basis and for humanitarian reasons or for other purposes in the national interest, permit the processing of travelers to the United States not engaged in “essential travel.”
Coast Guard, Department of Homeland Security (DHS).
Notification of enforcement of regulation.
The Coast Guard will enforce a special local regulation for the OPA World Championships/Englewood Beach Waterfest event on November 19, 2021 through November 21, 2021, to provide for the safety of life on navigable waterways during this event. Our regulation for recurring marine events within Sector St. Petersburg identifies the regulated area for this event in Englewood, FL. During the enforcement periods, the operator of any vessel in the regulated area must comply with directions from the Patrol Commander or any designated representative.
The regulations in 33 CFR 100.703, Table 1 to § 100.703, Line No. 9, will be enforced from 8:00 a.m. through 7:00 p.m., from November 19, 2021, through November 21, 2021.
If you have questions about this notification of enforcement, call or email Marine Science Technician First Class Michael Shackleford, Sector St. Petersburg Prevention Department, Coast Guard; telephone (813) 228-2191, email
The Coast Guard will enforce the special local regulation in 33 CFR 100.703, Table 1 to § 100.703, Line No. 9, for the OPA World Championships/Englewood Beach Waterfest regulated area from 8:00 a.m. to 7:00 p.m., each day from November 19, 2021 through November 21, 2021. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for recurring marine events, Sector St. Petersburg, § 100.703, Table 1 to § 100.703, Line No. 9, specifies the location of the regulated area for the OPA World Championships/Englewood Beach Waterfest which encompasses portions of the Gulf of Mexico near Englewood, FL. During the enforcement periods, as reflected in § 100.703(c), if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any designated representative.
In addition to this notification of enforcement in the
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving multiple state implementation plan (SIP) revisions submitted by the Commonwealth of Pennsylvania. These revisions were submitted by the Pennsylvania Department of Environmental Protection (PADEP) to establish and require reasonably available control technology (RACT) for individual major sources of volatile organic compounds (VOC) and/or nitrogen oxides (NO
This final rule is effective on November 22, 2021.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2020-0575. All documents in the docket are listed on the
Mr. Riley Burger, Permits Branch (3AD10), Air and Radiation Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-2217. Mr. Burger can also be reached via electronic mail at
On May 7, 2021, EPA published a notice of proposed rulemaking (NPRM). 86 FR 24564. In the NPRM, EPA proposed approval of case-by-case RACT determinations for sources at ten facilities in Allegheny County, as EPA found that that the RACT controls for these sources met the CAA RACT requirements for the 2008 ozone NAAQS. PADEP, on behalf of Allegheny County Health Department (ACHD), initially submitted revisions to its SIP to address case-by-case NOx and VOC RACT for these sources on May 7, 2020 and supplemented the submittal on February 9, 2021.
Under certain circumstances, states are required to submit SIP revisions to address RACT requirements for both major sources of NO
On May 16, 2016, PADEP submitted a SIP revision addressing RACT for both the 1997 and 2008 8-hour ozone NAAQS in Pennsylvania. PADEP's May 16, 2016 SIP revision intended to address certain outstanding non-CTG VOC RACT, VOC CTG RACT and major source VOC and NO
On May 9, 2019, EPA conditionally approved the RACT II rule based on the commitments PADEP made in its September 22, 2017 letter.
The SIP revisions in this action only establish 2008 8-hour ozone NAAQS RACT requirements. Applicable RACT requirements under the CAA for sources located in Allegheny County for the 1997 8-hour ozone NAAQS were previously satisfied. See 78 FR 34584 (June 10, 2013).
To satisfy a requirement from EPA's May 9, 2019 conditional approval, PADEP submitted to EPA SIP revisions addressing alternative NO
In the case-by-case RACT determinations submitted by PADEP on behalf of ACHD, an evaluation was completed to determine if previously SIP-approved, case-by-case RACT emission limits or operational controls (herein referred to as RACT I and contained in RACT I permits) were more stringent than the new RACT II presumptive or case-by-case requirements. If more stringent, the RACT I requirements will continue to apply to the applicable source. If the new case-by-case RACT II requirements are more stringent than the RACT I requirements, then the RACT II requirements will supersede the prior RACT I requirements.
Here, EPA is approving SIP revisions pertaining to case-by-case RACT requirements for sources at nine major NO
The case-by-case RACT determinations submitted by PADEP, on behalf of ACHD, consist of an evaluation of all reasonably available controls at the time of evaluation for each affected emissions unit, resulting in an ACHD determination of what specific emission limit or control measures satisfy RACT for that particular unit. The adoption of new, additional, or revised emission limits or control measures to existing SIP-approved RACT I requirements were specified as requirements in new or revised Federally enforceable permits (hereafter RACT II permits) issued by ACHD to the source. These RACT II permits have been submitted as part of the Pennsylvania RACT SIP revisions for EPA's approval into the Pennsylvania SIP under 40 CFR 52.2020(d)(1). The RACT II permits submitted by PADEP are listed in the last column of Table 1 of this preamble, along with the permit effective date, and are part of the docket for this rule, which is available online at
PADEP's SIP revisions incorporate ACHD's determinations of source-specific RACT II controls for individual emission units at major sources of NO
ACHD, in its RACT II determinations, considered the prior source-specific RACT requirements and, where more stringent, retained those prior RACT requirements as part of its new RACT determinations. In the NPRM, EPA proposed to find that all the proposed revisions to previously SIP-approved RACT requirements would result in equivalent or additional reductions of NO
Other specific requirements of the 2008 8-hour ozone NAAQS case-by-case RACT determinations and the rationale for EPA's proposed action are explained more thoroughly in the NPRM, and its associated technical support document (TSD), and will not be restated here.
EPA received comments from three commenters on the May 7, 2021 NPRM. 86 FR 24564. A summary of the comments and EPA's responses are discussed in this section. A copy of the comments can be found in the docket for this rule action.
EPA is approving case-by-case RACT determinations for sources at nine major NO
In this document, EPA is finalizing regulatory text that includes
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 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 December 20, 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 Pennsylvania's NO
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(d) * * *
(1) * * *
(e) Approval of source-specific RACT requirements for 2008 8-hour ozone national ambient air quality standards for the facilities listed in this paragraph are incorporated as specified. (Rulemaking Docket No. EPA-OAR-2020-0575).
(1) Bellefield Boiler Plant—Incorporating by reference Installation Permit No. 0047-I003a, issued on April 14, 2020 and amended on November 30, 2020 as redacted by ACHD, which supersedes RACT Enforcement Order No. 248, effective December 19, 1996, except for Conditions 1.2, 1.3, 1.4, 1.5 and 1.7A through E, which remain as RACT requirements. See also § 52.2063(c)(177)(i)(B)(3) for prior RACT approval.
(2) Eastman Chemical Resins, Inc. Jefferson Site—Installation Permit No. 0058-I026 issued April 21, 2020, as redacted by ACHD, which supersedes Consent Order No. 257, issued on January 14, 1997, except for Conditions 1.1, 1.2, 1.3, 1.4, and 1.7, which remain as RACT requirements. The requirements of Enforcement Order No. 216, issued March 8, 1996, also continue to apply to identified sources that continue to operate. See also §§ 52.2063(c)(166)(i)(B)(2) and 52.2063(c)(166)(i)(B)(3), respectively, for prior RACT approval.
(3) Energy Center Pittsburgh LLC, North Shore Plant— Incorporating by reference Installation Permit No. 0022-I003a, issued on March 18, 2020 and amended on November 30, 2020, as redacted by ACHD. All permit conditions in the prior RACT Permit, CO No. 220, effective March 4, 1996, remain as RACT requirements. See also § 52.2063(d)(1)(o) for prior RACT approval.
(4) Neville Chemical Company—Incorporating by reference Installation Permit No. 00060d issued September 28, 2015 and amended on November 10, 2020, as redacted by ACHD, which supersedes Consent Order No. 230, issued on December 13, 1996, except for Conditions 1.1, 1.3, 1.5, 1.6, 1.7. 1.9, and 1.10, which remain as RACT requirements. See also § 52.2063(c)(166)(i)(B)(4) for prior RACT approval.
(5) Pittsburgh Allegheny County Thermal, Ltd—Incorporating by reference Permit No. 0044-I001a, issued on March 25, 2020 and amended on November 30, 2020, as redacted by ACHD. All permit conditions in the prior RACT Permit, CO No. 265, effective November 9, 1998, remain as RACT requirements. See also § 52.2063(c)(177)(i)(B)(8) for prior RACT approval.
(6) Universal Stainless & Alloy Products, Inc.—Incorporating by reference Title V Operating Permit No. 0027a, issued on November 21, 2017 and amended on February 20, 2020, as redacted by ACHD, which supersedes Consent Order No. 241 issued on December 19, 1996, except for Conditions 1.1, 1.2, and 1.3, which remain as RACT requirements. See also § 52.2063(c)(172)(i)(B)(2) for prior RACT approval.
(7) U.S. Steel Mon Valley Works Clairton Plant—Incorporating by reference Installation Permit No. 0052-I020b, revised and issued December 11, 2020, as redacted by ACHD, which supersedes RACT Consent Order No. 234, issued December 30, 1996, except for Conditions 1.1, 1.3, 1.4, 1.5, and 1.6, which remain as RACT requirements. See also § 52.2063(c)(172)(i)(B)(5) for prior RACT approval.
(8) U.S. Steel Mon Valley Works Edgar Thompson Plant—Incorporating by reference Installation Permit 0051-I008a, revised and effective on (December 7, 2020), which supersedes the RACT Consent Order No. 235, issued December 30, 1996, except for Conditions 1.1, 1.3, 1.4, 1.5, 1.6, and 1.7, which remain as RACT requirements. See also § 52.2063(c)(172)(i)(B)(6) for prior RACT approval.
(9) U.S. Steel Mon Valley Works—Irvin Plant—Incorporating by reference Title V Operating Permit No. 0050-OP16c, issued on December 7, 2020, as redacted by ACHD, which supersedes RACT Consent Order No. 258, issued December 30, 1996, except for Conditions 1.1 and 1.2 and for Source ID P008 (No. 3 Five Stand Cold Reduction Mill) Condition 1.3, which remain as RACT requirements. See also § 52.2063(c)(172)(i)(B)(7) for prior RACT approval.
Office of Inspector General, U.S. Department of Homeland Security.
Notice of proposed rulemaking.
The U.S. Department of Homeland Security (DHS) is giving concurrent notice of an updated and reissued system of records pursuant to the Privacy Act of 1974 for the “DHS/Office of Inspector General (OIG)-002 Investigative Records System of Records” and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
Comments must be received on or before November 22, 2021.
You may submit comments, identified by docket number DHS-2021-0042, by one of the following methods:
•
•
•
For general and privacy questions, please contact: Lynn Parker Dupree, (202) 343-1717, Chief Privacy Officer, U.S. Department of Homeland Security, Washington, DC 20528-0655.
In accordance with the Privacy Act of 1974, the U.S. Department of Homeland Security (DHS), Office of Inspector General (OIG), is modifying and reissuing this system of records notice. DHS OIG is responsible for a wide range of oversight functions, including to initiate, conduct, supervise, and coordinate audits, investigations, inspections, and other reviews relating to the programs and operations of DHS. DHS OIG promotes economy, efficiency, and effectiveness within DHS and prevents, detects, and investigates employee corruption, fraud, waste, and abuse in its programs and operations. DHS OIG is responsible for investigating allegations of criminal, civil, and administrative misconduct involving DHS employees, contractors, grantees, and DHS programs and activities. These investigations can result in criminal prosecutions, fines, civil monetary penalties, and administrative sanctions. While DHS OIG is operationally a part of DHS, it operates independently of DHS and all offices within it.
The DHS/OIG-002 Investigative Records System of Records assists DHS OIG with receiving and processing allegations of misconduct, including violations of criminal and civil laws, as well as administrative policies and regulations pertaining to DHS employees, contractors, grantees, and other individuals and entities within DHS. The system includes complaints and investigation-related files. DHS OIG manages information provided during the course of its investigations to: Create records showing dispositions of allegations; audit actions taken by DHS management regarding employee misconduct; audit legal actions taken following referrals to the U.S. Department of Justice (DOJ) for criminal prosecution or civil action; calculate and report statistical information; manage OIG investigators' training; and manage Government-issued investigative property and other resources used for investigative activities.
DHS is issuing this notice of proposed rulemaking to exempt this system of records from certain provisions of the Privacy Act.
A fuller description of this modified SORN can be found herein the
The Privacy Act codifies fair information practice principles in a statutory framework governing the means by which Federal Government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. Additionally, and similarly, the Judicial Redress Act (JRA) provides a statutory right to covered persons to make requests for access and amendment to covered records, as defined by the JRA, along with judicial review for denials of such requests. In addition, the JRA prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act.
The Privacy Act allows government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed.
DHS is claiming exemptions from certain requirements of the Privacy Act for DHS/OIG-002 Investigative Records System of Records. Some information DHS/OIG-002 Investigative Records System of Records relates to official DHS national security, law enforcement, immigration, intelligence activities, and protective services to the President of the U.S. or other individuals pursuant to Section 3056 and 3056A of Title 18. These exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically,
In appropriate circumstances, when compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived on a case by case basis.
A system of records notice for DHS/OIG-002 Investigative Records System of Records is also published in this issue of the
Freedom of information; Privacy.
For the reasons stated in the preamble, DHS proposes to amend chapter I of title 6, Code of Federal Regulations, as follows:
6 U.S.C. 101
5. The DHS/OIG-002 Investigative Records System of Records consists of electronic and paper records and will be used by DHS and its components. The DHS/OIG-002 Investigative Records System of Records is a repository of information held by DHS in connection with its several and varied missions and functions, including, but not limited to the enforcement of civil and criminal laws; investigations, inquiries, and proceedings there under; national security and intelligence activities; and protection of the President of the U.S. or other individuals pursuant to Section 3056 and 3056A of Title 18. The DHS/OIG-002 Investigative Records System of Records contains information that is collected by, on behalf of, in support of, or in cooperation with DHS and its components and may contain personally identifiable information collected by other federal, state, local, tribal, foreign, or international government agencies.
The Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(j)(2), has exempted this system from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f); and (g)(1). Additionally, the Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5), has exempted this system from the following provisions of the Privacy Act, 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process. When an investigation has been completed, information on disclosures made may continue to be exempted if the fact that an investigation occurred remains sensitive after completion.
(b) From subsection (d) (Access and Amendment to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an unreasonable administrative burden by requiring investigations to be continually reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of federal law, the accuracy of information obtained or introduced occasionally may be unclear, or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
(d) From subsection (e)(2) (Collection of Information from Individuals) because requiring that information be collected from the subject of an investigation would alert the subject to the nature or existence of the investigation, thereby interfering with that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing such detailed information could impede law enforcement by compromising the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G), (H), and (I) (Agency Requirements) and (f) (Agency Rules), because portions of this system are exempt from the individual access provisions of subsection (d) for the reasons noted above, and therefore DHS is not required to establish requirements, rules, or procedures with respect to such access. Providing notice to individuals with respect to existence of records pertaining to them in the system of records or otherwise setting up procedures pursuant to which individuals may access and view records pertaining to themselves in the system would undermine investigative efforts and reveal the identities of witnesses, and potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because with the collection of information for law enforcement purposes, it is impossible to determine in advance what information is accurate, relevant, timely, and complete. Compliance with subsection (e)(5) would preclude DHS agents from using their investigative training and exercise of good judgment to both conduct and report on investigations.
(h) From subsection (e)(8) (Notice on Individuals) because compliance would interfere with DHS's ability to obtain, serve, and issue subpoenas, warrants, and other law enforcement mechanisms that may be filed under seal and could result in disclosure of investigative techniques, procedures, and evidence.
(j) From subsection (g)(1) (Civil Remedies) to the extent that the system is exempt from other specific subsections of the Privacy Act.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Schempp-Hirth Flugzeugbau GmbH Model Duo Discus and Duo Discus T gliders. This proposed AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as jerky extension of the air brakes at very high air speeds, including cases where the air brake blades interlock. This proposed AD would require replacing certain air brake end stop bushings, inspecting certain other air brake end stops, and repairing if necessary. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by December 6, 2021.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Schempp-Hirth Flugzeugbau GmbH, Krebenstrasse 25, 73230 Kirchheim/Teck, Germany; phone: +49 7021 7298-0; fax: +49 7021 7298-199; email:
You may examine the AD docket at
Jim Rutherford, Aviation Safety Engineer, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 901 Locust, Room 301, Kansas City, MO 64106; phone: (816) 329-4165; fax: (816) 329-4090; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Jim Rutherford, Aviation Safety Engineer, FAA, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 901 Locust, Room 301, Kansas City, MO 64106. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.
The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0233, dated October 27, 2020 (referred to after this as “the MCAI”), to address an unsafe condition on certain serial-numbered (S/N) Schempp-Hirth Flugzeugbau GmbH Model Duo Discus, Duo Discus C, and Duo Discus T gliders. The MCAI states:
Occurrences were reported of experiencing jerky extension of the airbrakes at very high air speeds, in some cases of which the airbrake blades interlocked. An increasing number of age-related damage was observed on a specific version (22 mm plastic bushes) of the airbrake end-stops.
This condition, if not corrected, could lead to blockage of the airbrakes, possibly resulting in reduced control of the (powered) sailplane.
To address this potential unsafe condition, Schempp-Hirth issued the applicable [technical note] TN (original issue) to provide instructions to replace the affected parts with a new version bushing, made of better material.
Since [EASA planned AD] PAD 20-119 was issued, it was discovered that early s/n sailplanes were equipped with a single metal end stop per airbrake. The applicable TN was revised accordingly. The PAD was revised to include those metal end stops in the definition of `affected part' to ensure these are inspected.
For the reasons described above, this [EASA] AD requires replacement of certain affected parts with serviceable parts. For other affected parts, this [EASA] AD requires a one-time inspection for sufficient overlap and, depending on findings, accomplishment of applicable corrective action(s). This [EASA] AD also prohibits (re)installation of affected parts.
You may examine the MCAI in the AD docket at
The FAA reviewed Schempp-Hirth Flugzeugbau GmbH Working Instructions for Technical Note 890-16 rev1 and Technical Note 396-20 rev1 action 1, dated September 18, 2020. The service information contains procedures for replacing each air brake end stop plastic bushing (22 mm) with an air brake end stop plastic bushing (32 mm). The FAA also reviewed Schempp-Hirth Flugzeugbau GmbH Working Instructions for Technical Note 396-20 rev1 action 2, dated September 18, 2020. The service information contains procedures for inspecting each single air brake metal end stop for overlap. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information already described, except as described under “Differences Between this Proposed AD and the MCAI.” This proposed AD would also require repairing any single air brake metal end stop with insufficient overlap.
The MCAI applies to Schempp-Hirth Flugzeugbau GmbH Model Duo Discus C gliders, and this proposed AD would not because this model does not have an FAA type certificate.
The MCAI allows credit for modifications done prior to the effective date of the EASA AD in accordance with the original issue of Schempp-Hirth TN 396-20/TN 890-16, but this proposed AD would not provide such credit.
The MCAI prohibits installation of air brake end stop plastic bushings (22 mm) after a glider has been modified with an air brake end stop plastic bushing (32 mm). This proposed AD would prohibit installation of air brake end stop plastic bushings (22 mm) as of the effective date of this AD.
The FAA estimates that this AD, if adopted as proposed, would affect 27 gliders of U.S. registry.
The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the following costs to do any necessary repairs that would be required based on the results of the proposed inspection. The FAA has no way of determining the number of gliders that might need these repairs:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by December 6, 2021.
None.
This AD applies to the Schempp-Hirth Flugzeugbau GmbH gliders identified in paragraphs (c)(1) and (2) of this AD, certificated in any category.
(1) Model Duo Discus gliders, serial number (S/N) 1 through 541 inclusive, except S/N 534.
(2) Model Duo Discus T gliders, S/N 1 through 174 inclusive.
Joint Aircraft System Component (JASC) Code 2760, Drag Control System.
This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as jerky extension of the air brakes at very high air speeds, including cases where the air brake blades interlock. The FAA is issuing this AD to prevent and correct damage of the airbrake end-stops. The unsafe condition, if not addressed, could result in blockage of the air brakes and reduced control of the glider.
Comply with this AD within the compliance times specified, unless already done.
(1) For gliders with air brake end stop plastic bushings (22 mm) installed: Within 3 months after the effective date of this AD, replace each air brake end stop plastic bushing (22 mm) with an air brake end stop plastic bushing (32 mm) in accordance with Schempp-Hirth Flugzeugbau GmbH Working Instructions for Technical Note 890-16 rev1 and Technical Note 396-20 rev1 action 1, dated September 18, 2020.
(2) For gliders with single air brake metal end stops installed: Within 3 months after the effective date of this AD, inspect each single air brake metal end stop for overlap in accordance with Schempp-Hirth Flugzeugbau GmbH Working Instructions for Technical Note 396-20 rev1 action 2, dated September 18, 2020. If there is insufficient overlap, before further flight, repair using a method approved by the FAA or the European Union Aviation Safety Agency (EASA).
As of the effective date of this AD, do not install an air brake end stop plastic bushing (22 mm) on any glider.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (j)(1) of this AD or email:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Jim Rutherford, Aviation Safety Engineer, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 901 Locust, Room 301, Kansas City, MO 64106; phone: (816) 329-4165; fax: (816) 329-4090; email:
(2) Refer to EASA AD 2020-0233, dated October 27, 2020, for more information. You may examine the EASA AD in the AD docket at
(3) For service information identified in this AD, contact Schempp-Hirth Flugzeugbau GmbH, Krebenstrasse 25, 73230 Kirchheim/Teck, Germany; phone: +49 7021 7298-0; fax: +49 7021 7298-199; email:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish United States Area Navigation (RNAV) route T-366 in the vicinity of Point Hope, AK in support of a large and comprehensive T-route modernization project for the state of Alaska.
Comments must be received on or before December 6, 2021.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1(800) 647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2021-0818; Airspace Docket No. 19-AAL-35 at the beginning of your comments. You may also submit comments through the internet at
FAA Order JO 7400.11F, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Christopher McMullin, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System (NAS) by lessening the dependency on ground based navigation.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2021-0818; Airspace Docket No. 19-AAL-35) and be submitted in triplicate to the Docket Management Facility (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2021-0818; Airspace Docket No. 19-AAL-35.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the
In 2003, Congress enacted the Vision 100—Century of Aviation Reauthorization Act (Pub L., 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.
In support of NextGen, this proposal is part of a larger and comprehensive T-route modernization project in the state of Alaska. The project mission statement states: “To modernize Alaska's Air Traffic Service route structure using satellite based navigation Development of new T-routes and optimization of existing T-routes will enhance safety, increase efficiency and access, and will provide en route continuity that is not subject to the restrictions associated with ground based airway navigation.” As part of this project, the FAA evaluated the existing Colored Airway structure for: (a) Direct replacement (
The aviation industry/users have indicated a desire for the FAA to transition the Alaskan en route navigation structure away from dependency on Non-Directional Beacons (NDB), and move to develop and improve the RNAV route structure. The FAA proposes to establish RNAV route T-366 to provide an alternate routing for Colored airways B-2, B-5, and G-16. These routes utilize Wainwright Village, AK, (UKK) and Nuiqsut Village, AK, (UQS) NDBs, which are planned for decommissioning.
The FAA is proposing an amendment to 14 CFR part 71 to establish RNAV route T-366 in the vicinity of Point Hope, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. The proposed route is described below.
T-366: The FAA proposes to establish T-366 navigating from Point Hope, AK, to Cape Lisburne, AK, (LUR), mirroring Colored airway B-5, from LUR to Point Lay, AK, (PIZ), mirroring Colored airway B-2, and from PIZ to UQS, mirroring Colored airway G-16.
United States Area Navigation Routes are published in paragraph 6011 of FAA Order JO 7400.11F dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The RNAV route listed in this document would be published subsequently in FAA Order JO 7400.11F.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Securities and Exchange Commission.
Proposed rule; reopening of comment period.
The Securities and Exchange Commission (“Commission”) is reopening the comment period for its proposal to implement the provisions of Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”). The proposed rule would direct the national securities exchanges and national securities associations to establish listing standards that would require each issuer to develop and implement a policy providing for the recovery, under certain circumstances, of incentive-based compensation based on financial information required to be reported under the securities laws that is received by current or former executive officers, and require disclosure of the policy (the “Proposed Rules”). The Proposed Rules were set forth in a release published in the
The comment period for the proposed rule published July 14, 2015, at 80 FR 41143, is reopened. Comments should be received on or before November 22, 2021.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send paper comments to Vanessa A. Countryman, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
Studies, memoranda, or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on our website. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at
Steven G. Hearne, Senior Special Counsel, in the Office of Rulemaking, at (202) 551-3430, Division of Corporation Finance, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
Section 954 of the Dodd-Frank Act added Section 10D to the Securities Exchange Act of 1934
1. Require national securities exchanges and associations to establish listing standards that require listed issuers to adopt and comply with a compensation recovery policy in which:
i. Recovery is required:
a. From current and former executive officers who received incentive-based compensation during the three fiscal years preceding the date on which the issuer is required to prepare an accounting restatement to correct a material error.
b. On a “no fault” basis, without regard to whether any misconduct occurred or an executive officer's responsibility for the misstated financial statements.
ii. The amount of incentive-based compensation to be recovered is the amount received by an executive officer that exceeds the amount the executive officer would have received had the incentive-based compensation been determined based on the restated financial statements.
iii. Issuers must recover in compliance with their recovery policies except to the extent that it would be impracticable to do so, such as where the direct expense of enforcing recovery would exceed the amount to be recovered or, for foreign private issuers, in specified circumstances where recovery would violate home country law.
iv. Issuers are prohibited from indemnifying current and former executive officers against the loss of recoverable incentive-based compensation.
2. Define significant terms, including:
i. “Incentive-based compensation” as any compensation that is granted, earned, or vested based wholly or in part upon the attainment of a financial reporting measure, and further defining “financial reporting measure” as a measure that is determined and presented in accordance with the accounting principles used in preparing the issuer's financial statements, any measure derived wholly or in part from such financial information, and stock price and total shareholder return. For incentive-based compensation based on stock price or total shareholder return, issuers would be permitted to use a reasonable estimate of the effect of the restatement on the applicable measure to determine the amount to be recovered.
ii. “Executive officer” modeled on the definition of “officer” under 15 U.S.C. 78p (“Exchange Act Section 16”), to include the issuer's president, principal financial officer, principal accounting officer, any vice-president in charge of a principal business unit, division or function, and any other person who performs policy-making functions for the issuer and otherwise conforms to the full scope of the Exchange Act Section 16 definition.
3. Require the filing of the compensation recovery policy as an exhibit to the issuer's Exchange Act annual report, and if during its last completed fiscal year the issuer either completed a restatement that required recovery, or there was an outstanding balance of excess incentive-based compensation relating to a prior restatement, require disclosure, block tagged in XBRL, to accompany the executive compensation disclosure in annual reports and any proxy or information statements of:
i. The date on which the issuer was required to prepare each accounting restatement, the aggregate dollar amount of excess incentive-based compensation attributable to the restatement, and the aggregate dollar amount of excess incentive-based compensation that remained outstanding at the end of its last completed fiscal year.
ii. The name of each individual subject to recovery from whom the issuer decided not to pursue recovery, the amounts due from each such individual, and a brief description of the reason the issuer decided not to pursue recovery.
iii. If at the end of the issuer's last completed fiscal year, amounts of excess incentive-based compensation are outstanding from any individual for more than 180 days, the name of, and amount due from, each such individual.
4. Apply to all listed issuers except for certain registered investment companies to the extent they do not provide incentive-based compensation to their employees and limited accommodations for foreign private issuers.
Since the enactment of Section 954 of the Dodd-Frank Act in 2010, and the publication of the Proposed Rules in 2015, there have been important developments relating to clawback policies. We have observed an increase in the number of issuers disclosing information about their ability to recoup performance-based awards in the event of fraud, restatement of financial statements, or other reasons, and adopting and implementing executive compensation clawback policies addressing these circumstances.
In light of these developments, and our further consideration of how best to implement the Section 954 mandate, we are reopening the comment period for the Proposed Rules until November 22, 2021 to provide the public with an additional opportunity to analyze and comment on the Proposed Rules. Commenters may submit, and the Commission will consider, comments on any aspect of the Proposed Rules. All comments received to date on the Proposed Rules will be considered and need not be resubmitted. Comments are particularly helpful to us if accompanied by quantified estimates or other detailed analysis and supporting
1. Exchange Act Section 10D provides for the implementation of a policy for the recovery of certain incentive-based compensation “in the event that the issuer is required to prepare an accounting restatement due to the material noncompliance of the issuer with any financial reporting requirement under the securities laws.” The Commission proposed to define an “accounting restatement” for this purpose as “the result of the process of revising previously issued financial statements to reflect the correction of one or more errors that are material to those financial statements.” The proposed definition would not require a recovery where an issuer's previously issued financial statements are required to be restated in order to correct errors that were not material to those previously issued financial statements, but would result in a material misstatement if (a) the errors were left uncorrected in the current report or (b) the error correction was recognized in the current period.
Since the Commission issued the Proposing Release in 2015, concerns have been expressed that issuers may not be making appropriate materiality determinations for errors identified. Some commentators have suggested that this could be because some of these issuers are seeking to avoid compensation recovery under their clawback policies.
We are considering whether the term “an accounting restatement due to material noncompliance” should be interpreted to include all required restatements made to correct an error in previously issued financial statements.
Should the scope of the Proposed Rules include (1) restatements that correct errors that are material to previously issued financial statements and (2) restatements that correct errors that are not material to previously issued financial statements, but would result in a material misstatement if (a) the errors were left uncorrected in the current report or (b) the error correction was recognized in the current period? Are there practical or other considerations that would make application of the clawback policy in these circumstances challenging or unduly burdensome? If so, are there additional changes we should make to address those challenges or burdens? For example, in instances where a clawback analysis would be trigged by restatements that correct errors that are not material to previously issued financial statements, should the rules provide additional discretion for compensation committees of the issuer's board of directors to determine whether to pursue recovery of incentive-based compensation and how much to recover, and would such discretion be consistent with Section 954? Is there an alternative interpretation of “an accounting restatement due to material noncompliance” that would be more appropriate and better capture required restatements? Are there accounting restatements that are due to material noncompliance that would not be captured by the proposed definition or the interpretation set forth above that should be subject to clawback?
2. For purposes of triggering the three-year lookback period, the Proposed Rules would establish the date on which an issuer is required to prepare an accounting restatement as the earlier of (a) the date the issuer's board of directors, a committee of the board of directors, or the officer or officers of the issuer authorized to take such action if board action is not required, concludes, or reasonably should have concluded, that the issuer's previously issued financial statements contain a material error, or (b) the date a court, regulator or other legally authorized body directs the issuer to restate its previously issued financial statements to correct a material error. The Proposing Release indicated the Commission's belief that a definition that incorporates the proposed triggering events rather than leaving the determination solely to the discretion of the issuer would better realize the objectives of Section 10D while providing clarity about when a recovery policy, and specifically the determination of the three-year look-back period, would be triggered for purposes of the proposed listing standards. Some commenters expressed concern that the “reasonably should have concluded” standard adds
3. The Commission proposed defining a number of terms for purposes of the Proposed Rules. Alternatively, should the Commission rely on common understanding or specifically delineate the rules without relying on a set of definitions specific to this rule? For example, an “accounting restatement” was proposed to be defined solely for the purposes of the Proposed Rule as “the result of the process of revising previously issued financial statements to reflect the correction of one or more errors that are material to those financial statements.” U.S. GAAP and IFRS include guidance on how an issuer should correct accounting errors in previously issued financial statements.
4. If we interpret the statutory term “an accounting restatement due to material noncompliance” to include restatements required to correct errors that were not material to previously issued financial statements, but would result in a material misstatement if (a) the errors were left uncorrected in the current report or (b) the error correction was recognized in the current period, then those restatements would require a recovery analysis. Registrants do not always label historical financial statements as “restated” for these types of restatements. Also, an Item 4.02 Form 8-K filing is not typically filed for this type of error, because the error is not material to the previously issued financial statements. As such, to provide greater transparency around such restatements, we are considering whether to add check boxes to the cover page of the Form 10-K that indicate separately (a) whether the previously issued financial statements included in the filing include an error correction, and (b) whether any such corrections are restatements that triggered a clawback analysis during the fiscal year. Would one or both checkboxes and the related information be useful to investors? Is there another method, such as via a Form 8-K filing, that we should consider in order to provide this information to investors in a transparent and prominent manner? Are there any other disclosures that would be useful to investors in explaining or clarifying information surrounding any restatements or the issuer's decision of whether or not to claw back compensation?
5. As noted above, there has been an observed increase in voluntary adoption of compensation clawback policies in recent years, together with accompanying disclosures about those policies. These developments would impact the potential costs of the Proposed Rules at the aggregate level. However, such impact is likely to differ across issuers in a variety of ways. For example, some issuers may already have policies that would satisfy, or easily could be modified to satisfy, the requirements of the Proposed Rules. Other issuers may have clawback policies in place that are substantially different from the requirements of the Proposed Rules, or may not have clawback policies in place altogether. We request any estimates or data that would allow us to refine our characterization of costs and benefits of the clawback policies under the current state of issuer clawback policies and how such effects would differ under the Proposed Rules. In particular, we request specific estimates of the costs that are incurred by issuers in implementing these policies, and the costs and benefits to investors. How might these costs and/or benefits change in implementing a policy pursuant to a
6. We understand that as part of the materiality analysis relating to errors, issuers already consider whether any misstatement of previously issued financial statements had the effect of increasing management's compensation. To what extent can the evaluation already conducted in connection with evaluating the materiality of an error be leveraged in connection with determining the need for and the amount of any clawback? Would revising the scope of the Proposed Rules to encompass additional accounting restatements, as described above, affect how an issuer conducts this evaluation and, if so, how? Would revising the scope largely capture situations where issuers may have shifted from restating previously issued financial statements to avoid triggering compensation clawback policies, or would there be situations where the revised scope becomes over-inclusive? How would revising the scope impact the costs to issuers or benefits to investors of the clawback provision and the execution of the clawback analysis as compared to the Proposed Rules? We request data or analysis that will assist us in evaluating the effects of including these additional accounting restatements within the scope of the rule, in particular any data that may assist in quantifying the number of additional clawback analyses that would be triggered and the costs and benefits of revising the scope of the rule. How would the potential changes discussed in this release affect the appropriateness of the scope of the Proposed Rules overall? For example, in response to the Proposing Release, some commenters stated that the Proposed Rules applied too broadly both to individuals and to issuers.
7. The Commission proposed to define the recoverable amount as “the amount of incentive-based compensation received by the executive officer or former executive officer that exceeds the amount of incentive-based compensation that otherwise would have been received had it been determined based on the accounting restatement.”
There are a number of possible methods to reasonably estimate the effect of an accounting restatement on stock price with varying levels of complexity and a range of related costs. For incentive-based compensation based on stock price or total shareholder return, where the amount of erroneously awarded compensation is not subject to mathematical recalculation directly from the information in the accounting restatement, the Proposed Rules would require an issuer to maintain documentation of the determination of that reasonable estimate and provide such documentation to the relevant exchange or association.
8. Have there been any changes or developments since the Proposing Release with respect to payment of incentive-based compensation by listed registered management investment companies that should affect how listed registered management investment companies are treated under the Proposed Rules? If an investment company, or a business development company, is externally, rather than internally, managed, should this impact how the company is treated under the Proposed Rules? For example, should listed business development companies (or externally managed listed business development companies) be treated the same as listed registered management investment companies and be eligible for the conditional exemption as long as they do not actually pay incentive-based compensation? Should we reconsider any of the Proposed Rules' conditions or disclosure requirements with respect to registered or unregistered investment companies? What impact would any of those changes have on the economic effects of the rule?
9. The Commission proposed to require that the new compensation recovery disclosures be block-text tagged using XBRL. The Commission is considering requiring that specific data points within the new compensation recovery disclosure be separately detail tagged using Inline XBRL instead of, or in addition to, the proposed block-text tagging.
10. Are there any other developments since the Proposing Release that should affect our consideration of the Proposed
We request and encourage any interested person to submit comments regarding the Proposed Rules, specific issues discussed in this release or the Proposing Release, and other matters that may have an effect on the Proposed Rules. We request comment from the point of view of issuers, shareholders, directors, investors, and other market participants. We note that comments are of particular assistance to us if accompanied by supporting data and analysis of the issues addressed in those comments, particularly quantitative information as to the costs and benefits. If alternatives to the Proposed Rules are suggested, supporting data and analysis and quantitative information as to the costs and benefits of those alternatives are of particular assistance. Commenters are urged to be as specific as possible; when commenting, it would be most helpful if you include the reasoning behind your position or recommendation. All comments received to date on the Proposed Rules will be considered and need not be resubmitted. If any commenters who have already submitted a comment letter wish to provide supplemental or updated comments, we encourage them to do so.
By the Commission.
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) proposes to revise its medical regulations to add chiropractic services to the definitions of medical services and preventive care. VA would further revise the definition of medical services to include rehabilitative services consistent with its statutory definition and to reflect changes made in other VA medical regulations and in prior legislation not previously codified. The proposed amendments would make VA medical regulations consistent with current practices, prior changes in law and VA's medical regulations, and changes in law made by the Consolidated Appropriations Act, 2018. These amendments would not substantively change the current administration of medical benefits to veterans.
Comments must be received on or before December 20, 2021.
Comments may be submitted through
Anthony Lisi, D.C., Director, Veterans Health Administration Chiropractic Service, Rehabilitation and Prosthetic Services (10P4R), 810 Vermont Ave. NW, Washington, DC 20420, (203) 932-5711, ext. 5341. (This is not a toll-free number.)
Section 1710 of title 38 of the United States Code (U.S.C.) requires VA to furnish hospital care and medical services which the Secretary determines to be needed for eligible veterans. Prior to March 23, 2018, under 38 U.S.C. 1701(6), medical services included medical examination and treatment, rehabilitative services, surgical services, dental services and appliances, optometric and podiatric services, preventive health services, noninstitutional extended care services, travel and certain incidental expenses, and prosthetic and related items and services. Preventive health services were specifically listed as medical services in section 1701(6)(D) while rehabilitative services were listed as medical services in the introductory text of section 1701(6). Both rehabilitative services and preventive health services were further defined in 38 U.S.C. 1701(8) and 1701(9), respectively. Rehabilitative services included professional, counseling, and guidance services and treatment programs necessary to restore the physical, mental, and psychological functioning of an ill or disabled person, while preventive health services included such services as medical and dental examinations, patient health education, mental health preventive services, substance abuse prevention measures, certain immunizations, and routine vision testing and eye care services.
On March 23, 2018, the President of the United States signed the Consolidated Appropriations Act, 2018, Public Law (Pub. L.) 115-141 (hereafter “Appropriations Act”). In section 245 of Division J of the Appropriations Act, Congress amended 38 U.S.C. 1701(6) by adding chiropractic services to the definition of medical services. Similarly, Congress amended the definition of rehabilitative services under section 1701(8) to include chiropractic services. Congress also amended section 1701(9) by adding chiropractic examinations and services to the definition of preventive services under section 1701(9). VA proposes to amend title 38 Code of Federal Regulations (CFR) 17.30 and 17.38 to conform to these statutory changes and for additional reasons, as set forth in more detail in the subsequent discussions.
VA has incorporated the definitions of medical services and preventive services into its medical regulations. Currently, § 17.30(a) defines the term medical services to include medical examination, treatment and rehabilitative services; surgical services; dental services and appliances as authorized in §§ 17.160 through 17.166; optometric and podiatric services; (in the case of a person otherwise receiving care or services under this chapter) preventive health care services set forth in 38 U.S.C. 1701(9); noninstitutional extended care services; wheelchairs, artificial limbs, trusses and similar appliances; special clothing made necessary by the wearing of prosthetic appliances, and such other supplies and services as are medically determined to be reasonable and necessary.
We propose to make several changes to this definition of medical services in 38 CFR 17.30(a) to make the regulation easier to read, to provide clarification, to conform to the statutory authority (38 U.S.C. 1701), including amendments made to this authority by the Appropriations Act, and to reference other applicable VA medical regulations in 38 CFR part 17.
For clarity and because of other changes we propose to amend § 17.30 as further explained below. We propose to redesignate current paragraphs (a)(2) and (a)(3) as (a)(3) and (a)(4), respectively; propose to move the language, medical examination, treatment, and rehabilitative services, from paragraph (a) to paragraph (a)(1) and revise it; and propose to move the language in current paragraph (a)(1) to paragraph (a)(2) and revise it.
Paragraph (a) would continue to include the heading of medical services and would state that the term medical services includes the following; after
Revised paragraph (a)(1) would explain that medical services include medical examination, treatment, and rehabilitative services (as defined in 38 U.S.C. 1701(8)).
As we do not further define in VA's medical regulations rehabilitative services, as used in 38 U.S.C. 1701(8), we propose to amend the definition of medical services in 38 CFR 17.30(a)(1) to make clear that the term “rehabilitative services” as used in these regulations is defined in 38 U.S.C. 1701(8). This would be similar to how we refer to preventive services in this definition of medical services under current § 17.30(a)(1). Individuals could thus refer to the term rehabilitative services in 38 U.S.C. 1701(8) to understand how we define it for purposes of medical services in part 17.
Consistent with changes to 38 U.S.C. 1701(6) made by the Appropriations Act, we propose to include chiropractic services in revised paragraph (a)(2).
Current paragraph (a)(1) includes a parenthetical before the part of the definition that references preventive health care services set forth in 38 U.S.C. 1701(9). This parenthetical phrase, (in the case of a person otherwise receiving care or services under this chapter), was included in current 38 CFR 17.30(a)(1) with respect to preventive health care services to be consistent with prior statutory authority. However, section 103 of Public Law 104-262 struck the parenthetical phrase from the statutory location where it applied to preventive health care services and inserted it before wheelchairs. This phrase, as included in current § 17.30(a)(1), is now inconsistent with the current language of 38 U.S.C. 1701(6)(D) and (9) with respect to preventive care. Instead, this parenthetical phrase is included in section 1701(6)(F), which states that medical services include the following: In the case of a person otherwise receiving care or services under this chapter—(i) wheelchairs, artificial limbs, trusses, and similar appliances; (ii) special clothing made necessary by the wearing of prosthetic appliances; and (iii) such other supplies or services as the Secretary determines to be reasonable and necessary. Because we are proposing to move and revise the language in current paragraph (a) to paragraph (a)(1), we would move the current language in paragraph (a)(1) to paragraph (a)(2) and revise it to remove the parenthetical with respect to preventive health care services. However, as explained in the next paragraph, the parenthetical phrase would not be included in the revisions to 38 CFR 17.30(a)(2) related to 38 U.S.C. 1701(6)(F).
Due to changes we made to VA's medical regulations in part 17, we would also amend § 17.30(a)(2) to include items and services as authorized in §§ 17.3200 through 17.3250. In a final rule published on December 28, 2020, we established new regulations on eligibility and criteria for the provision to veterans of certain items and services as authorized medical services pursuant to 38 U.S.C. 1701(6)(F) and 38 U.S.C. 1710(a). See 85 FR 84259. As currently written, the definition of medical services in § 17.30(a)(1) includes wheelchairs, artificial limbs, trusses and similar appliances, and such other supplies or services as are medically determined to be reasonable and necessary. This language is consistent with the language of 38 U.S.C. 1701(6)(F), which is further interpreted and implemented in the regulations at 38 CFR 17.3200 through 17.3250. Thus, as we are moving and revising this language in revised paragraph (a)(2), we would amend the definition of medical services to remove the language included in current paragraph (a)(1) that refers to wheelchairs, artificial limbs, trusses and similar appliances, and such other supplies or services as are medically determined to be reasonable and necessary and, in its place, add the items and services authorized by regulations at §§ 17.3200 through 17.3250. We would not include in revised § 17.30(a)(2) the parenthetical phrase discussed in the previous paragraph that is currently included in section 1701(6)(F) as such language is implemented in the regulations at §§ 17.3200 through 17.3250, thus making it redundant and unnecessary to include that phrase in revised § 17.30(a)(2) with respect to items and services authorized under §§ 17.3200 through 17.3250.
In the Authority section of 38 CFR part 17, we propose to add a citation to 38 U.S.C. 1701 as authority for § 17.30. This change would be consistent with the Office of the Federal Register's current format for the placement of authority citations in the CFR.
Relatedly, 38 CFR 17.38(a) sets forth the hospital, outpatient, and extended care services that constitute the medical benefits package (basic care and preventive care) available to eligible veterans. Included in the medical benefits package under § 17.38(a)(2) is preventive care, which the regulation makes clear is defined in 38 U.S.C. 1701(9). The regulation further provides examples of what is included: Periodic medical exams, health education, including nutrition education; maintenance of drug-use profiles, drug monitoring, and drug use education; mental health and substance abuse preventive services; immunizations against infectious disease; prevention of musculoskeletal deformity or other gradually developing disabilities of a metabolic or degenerative nature; genetic counseling concerning inheritance of genetically determined diseases; routine vision testing and eye-care services; periodic reexamination of members of high-risk groups for selected diseases and for functional decline of sensory organs, and the services to treat these diseases and functional declines.
To conform with the changes to 38 U.S.C. 1701(9) made by the Appropriations Act, we would amend 38 CFR 17.38(a)(2) by adding a new paragraph (x) to specifically include chiropractic services as preventive care. The term chiropractic services would encompass both chiropractic services and examinations. To maximize healthcare outcomes for veterans, the type of chiropractic services that would be available to eligible veterans as preventive care would be those services that are consistent with current evidence-based practices and chiropractic training and licensure.
In addition to the preventive care provided pursuant to 38 CFR 17.38(a)(2), VA provides basic care under § 17.38(a)(1). Basic care includes such care as inpatient and outpatient medical, surgical and mental healthcare; inpatient hospital healthcare; prescription drugs; and rehabilitative services. While not explicitly stated in § 17.38(a)(1), VA provides chiropractic services to veterans enrolled in VA's healthcare system as part of basic care. These services include examination, diagnosis, treatment, and management of neuromuscular and musculoskeletal conditions using non-pharmacological and non-operative methods. Because we have interpreted basic care to include chiropractic services, have provided these services as part of the medical benefits package, and will continue to do so, we are not amending the definition of basic care in § 17.38(a)(1) to explicitly include such services as it would be unnecessary to do so.
We note that we do not define rehabilitative services in our medical regulations, though the medical benefits package explicitly includes them in basic care, 38 CFR 17.38(a)(1)(vi), so we find it unnecessary to make any further changes to § 17.38 based on the changes
In the Authority section of 38 CFR part 17, we propose to add a citation to 38 U.S.C. 1701 as authority for § 17.38. This change would be consistent with the Office of the Federal Register's current format for the placement of authority citations in the CFR.
For those reasons explained above, we would amend the medical services definition in § 17.30 to include chiropractic services, reference 38 U.S.C. 1701(8) for purposes of defining rehabilitative services, remove the parenthetical before preventive health care services, and reference VA's regulations at 38 CFR 17.3200 through 17.3250. We would also amend § 17.38 to add chiropractic services to preventive care.
This action does not contain any provisions constituting collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. There would be no material changes to the medical benefits available to veterans. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless Providers Grant and Per Diem Program.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Government contracts, Government programs—veterans, Grant programs—veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and Dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Reporting and recordkeeping requirements, Travel and transportation expenses, Veterans.
Denis McDonough, Secretary of Veterans Affairs, approved this document on October 8, 2021, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 17 as follows:
38 U.S.C. 501, and as noted in specific sections.
Section 17.30 is also issued under 38 U.S.C. 1701.
* * *
Section 17.38 is also issued under 38 U.S.C. 1701 and 1703.
(a)
(1) Medical examination, treatment, and rehabilitative services (as defined in 38 U.S.C. 1701(8)).
(2) Surgical services, dental services and appliances as authorized in §§ 17.160 through 17.166, optometric and podiatric services, chiropractic services, preventive health care services set forth in 38 U.S.C. 1701(9), noninstitutional extended care, and items and services as authorized in §§ 17.3200 through 17.3250.
(a) * * *
(2) * * *
(x) Chiropractic services.
Environmental Protection Agency (EPA).
Notices of filing of petitions and request for comment.
This document announces the Agency's receipt of initial filings of pesticide petitions requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before November 22, 2021.
Submit your comments, identified by docket identification (ID) number and the pesticide petition (PP) of interest as shown in the body of this document, online at
Due to the public health concerns related to COVID-19, the 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 the EPA/DC and docket access, visit
Marietta Echeverria, Registration Division (7505P), main telephone number: (703) 305-7090, email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
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EPA is announcing receipt of pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 174 or part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.
Pursuant to 40 CFR 180.7(f), summaries of the petitions that are the subject of this document, prepared by the petitioners, are included in dockets EPA has created for these rulemakings. The dockets for these petitions are available at
As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petitions so that the public has an opportunity to comment on these requests for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petitions may be obtained through the petition summaries referenced in this unit.
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Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).
Extension of timeline.
The Social Security Act (the Act) requires us to publish a Medicare final rule no later than 3 years after the publication date of the proposed rule. This document announces an extension of the timeline for publication of a Medicare final rule in accordance with the Act, which allows us to extend the timeline for publication of the “Medicare and Medicaid Programs; Policy and Technical Changes to the Medicare Advantage, Medicare Prescription Drug Benefit, Program of All-inclusive Care for the Elderly (PACE), Medicaid Fee-For-Service, and Medicaid Managed Care Programs for Years 2020 and 2021” final rule under exceptional circumstances.
As of October 21, 2021, the timeline for publication of a rule to finalize the November 1, 2018 proposed rule (83 FR 54982) is extended until November 1, 2022.
Joseph Strazzire, (410) 786-2775.
On November 1, 2018 (83 FR 54982), we published a proposed rule, “Medicare and Medicaid Programs; Policy and Technical Changes to the Medicare Advantage, Medicare Prescription Drug Benefit, Program of All-inclusive Care for the Elderly (PACE), Medicaid Fee-
Section 1871(a)(3)(A) of the Act requires the Secretary to establish and publish a regular timeline for the publication of final regulations based on the previous publication of a proposed regulation. In accordance with section 1871(a)(3)(B) of the Act, the timeline may vary among different regulations based on differences in the complexity of the regulation, the number and scope of comments received, and other relevant factors, but may not be longer than 3 years except under exceptional circumstances. In addition, in accordance with section 1871(a)(3)(B) of the Act, the Secretary may extend the initial targeted publication date of the final regulation if the Secretary, no later than the regulation's previously established proposed publication date, publishes a notice with the new target date for publication, and such notice includes a brief explanation of the justification for the variation.
The final rule for the November 1, 2018 proposed rule should be published by November 1, 2021. However, we are unable to meet the 3-year timeline for publication of the previously referenced RADV-audit related provisions because of exceptional circumstances. Specifically, on October 26, 2018, just prior to the publication of the proposed rule, we published the FFS Adjuster Study. On December 27, 2018, we announced an extension of the comment period for the proposed RADV provisions of the rule until April 30, 2019 and a plan to release data underlying the FFS Adjuster study. On March 6, 2019 we announced the release of data underlying the FFS Adjuster study. On April 30, 2019, we announced an additional extension of the comment period for the RADV provision until August 28, 2019. We also announced that we would be releasing additional data underlying the FFS Adjuster Study, including additional data containing Protected Health Information, to all parties who entered an applicable data use agreement and paid the required fee. Finally, on June 28, 2019, we released additional material related to the FFS Adjuster Study, and made a further request for public comment. Based on extensive public comments received on the proposed rule and subsequent FFS Adjuster study and related data along with delays resulting from the agency's focus on the COVID-19 public health emergency, we determined that additional time is needed to address the complex policy and operational issues that were raised.
This document extends the timeline for publication of the final rule for 1 year, until November 1, 2022.
U.S. Agency for International Development.
Notice of information collection.
The U.S. Agency for International Development (USAID), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. Comments are requested concerning whether the proposed or continuing collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimates; ways to enhance the quality, utility, and clarity of the information collected; and ways to minimize the burden of the collection of the information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Interested persons are invited to submit written comments regarding the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), 725 7th Street NW, Washington, DC 20543. Attention: Desk Officer for USAID.
Alexandra Riboul, U.S. Agency for International Development, Office of Human Capital and Talent Management, Office of Workforce Planning, Policy, and Systems Management (PPSM)—Washington, DC 20523; tel. 202-712-1234, option #2.
The purpose of this collection is to determine if a candidate is eligible to receive Physician and Dentist Pay under the provisions of Title 38. This information will be maintained by USAID and made available to the Internal Revenue Service for tax and withholding purposes and to the U.S. Office of Personnel Management. Disclosure is voluntary. However, without the requested information, USAID will not be able to process a candidate's request to receive Physician and Dentist Pay. Authority to collect this information is contained in 5 U.S.C. 1104 and 5 U.S.C. 5371. The Office of U.S. Office of Personnel Management delegated authority to USAID to use provisions of Title 38, U.S.C. until June 30, 2022.
Paper.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of USAID, including whether the information collected has practical utility; (b) the accuracy of USAID's estimate of the burden (including both hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. The comments will also become a matter of public record.
Agricultural Marketing Service, USDA.
Notice.
United States Grain Standards Act (USGSA) designations of official agencies listed in
Applications and comments for areas of designation terminating on 12/31/2021 currently operated by Northeast Indiana and State Grain must be received by November 22, 2021.
Applications and comments for areas of designation terminating on 3/31/2022 currently operated by Barton, Farwell South, Northern Plains, Plainview, and Sioux City must be received between 11/1/2021 and 11/30/2021.
Applications and comments for areas of designation terminating on 6/30/2022 currently operated by Montana must be received between 1/3/2022 and 2/1/2022.
Submit applications and comments concerning this Notice using any of the following methods:
•
•
Austyn Hughes at
Designations of official agencies listed below will end on the prescribed dates:
Section 7(f) of the USGSA authorizes the Secretary to designate a qualified applicant to provide official services in a specified area after determining that the applicant is better able than any other applicant to provide such official services (7 U.S.C. 79(f)). A designated agency may provide official inspection services and/or Class X or Class Y weighing services at locations other than port locations. Under section 7(g) of the USGSA, designations of official agencies are effective for no longer than five years, unless terminated by the Secretary, and may be renewed according to the criteria and procedures prescribed in section 7(f) of the USGSA. See also, 7 CFR 800.196 for further information and guidance. Please note that sampling, weighing, and inspections conducted under the Agricultural Marketing Act of 1946 are conducted through cooperative agreements with AMS under the auspices of current official agency designation. See 7 U.S.C. 1621
The following list identifies designated official agencies currently operating and specific areas of operation that are open for designation applications. Please review the additional information provided via separate
Interested persons or governmental agencies may apply for designation to provide official services in geographic areas of official agencies specified above under provisions of section 7(f) of the USGSA and 7 CFR 800.196. Designation in specified geographic areas for Northeast Indiana and State Grain begins January 1, 2022. Designation in specified geographic areas for Barton, Farwell Southwest, Northern Plains, Plainview, and Sioux City begins April 1, 2022. Designation in specified geographic areas for Montana begins July 1, 2022. To apply for designation or to request more information on geographic areas serviced by these official agencies, contact
We are publishing this Notice to provide interested persons the opportunity to comment on the quality of services provided by the Northeast Indiana, State Grain, Barton, Farwell Southwest, Northern Plains, Plainview, Sioux City, and Montana official agencies. In the designation process, we are particularly interested in receiving comments citing reasons and pertinent data supporting or objecting to the designation of the applicant(s). Such comments should be submitted through the Federal e-rulemaking portal at
We consider applications, comments, and other available information when determining which applicants will be designated.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding: Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques and other forms of information technology.
Comments regarding this information collection received by November 22, 2021 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
• Who owns and manages the forestland of the United States;
• Why they own/manage it;
• How they have used it; and
• How they intend to use it.
This information is used by policy analysts, foresters, educators, and researchers to facilitate planning and implementation of forest policies and programs.
The Forest Service's direction and authority to conduct the NWOS is from the Resources Planning Act of 1974 and the Forest and Rangeland Renewable Resources Research Act of 1978. These acts assign responsibility for inventory and assessment of forest and related renewable resources to the Secretary of Agriculture, and these responsibilities are subsequently delegated to the Forest Service. Additionally, the importance of an ownership survey in this inventory and assessment process has been highlighted in the 2014 Farm Bill, the Agricultural Research, Extension, and Education Reform Act of 1998, and the recommendations of the 1998 Second Blue Ribbon Panel on the Forest Inventory and Analysis program. Previous iterations of the NWOS were conducted in 1978, 1993, 2002-2006, 2011-2013, and 2017-2018. Data collection for the current iteration is planned for 2019-2023. Initial approval for the current data collection cycle of the NWOS expires on October 31, 2021. If renewed, the current NWOS data collection cycle will be completed in 2023.
Forest Service, Agriculture (USDA).
Notice of meeting.
The Modoc County Resource Advisory Committee (RAC) will hold a virtual meeting by phone and/or video conference. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act as well as make recommendations on recreation fee proposals for sites on or benefitting the Modoc National Forest within Modoc County, consistent with the Federal Lands Recreation Enhancement Act. RAC information and virtual meeting information can be found at the following website:
The virtual meeting will be held on November 10, 2021 at 3:00 p.m.-6:00 p.m., Pacific Standard Time.
All RAC meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under
The meeting will be held virtually via Microsoft Teams video/phone conference. Members of the public may click here to join the meeting via video conference or call in (audio only) at 323-886-7051, Phone conference ID: 993 916 790#.
Written comments may be submitted as described under
Chris Christofferson, Designated Federal Officer (DFO), by phone at 530-233-8700 or email at
Individuals who use telecommunication devices for the deaf/hard-of-hearing (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours a day, every day of the year, including holidays.
The purpose of the meeting is to:
1. Hear from possible Title II project proponents and discuss project proposals;
2. Plan for project solicitation and replacment member recruitment;
3. Review old project meeting minutes; and
4. Schedule the next meeting.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should make a request in writing by November 3, 2021, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee before or after the meeting. Written comments and requests for time for oral comments must be sent to Chris Christofferson, Modoc County RAC, 225 W 8th St., Alturas, California 96101 or by email to
Equal opportunity practices, in line with USDA policies, will be followed in all membership appointments to the RAC. To help ensure that recommendations of the RAC have taken into account the needs of the diverse groups served by the Department, membership shall include, to the extent practicable, individuals
The USDA prohibits discrimination in all of its programs and activities on the basis of race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, political beliefs, income derived from a public assistance program, or reprisal or retaliation for prior civil rights activity in any program or activity conducted or funded by USDA (not all bases apply to all programs).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that The Navigator Company, S.A. (Navigator) made sales of certain uncoated paper (uncoated paper) from Portugal in the United States at less than normal value during the period of review (POR) March 1, 2019, through February 29, 2020.
Applicable October 21, 2021.
Eric Hawkins, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1988.
On June 4, 2021, Commerce published the
Commerce conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The products covered by this order are certain uncoated paper from Portugal. For a full description of the scope,
All issues raised in the case and rebuttal briefs are addressed in the Issues and Decision Memorandum. A list of the issues that parties raised and to which we responded in the Issues and Decision Memorandum is attached to this notice as an appendix. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on a review of the record and comments received from interested parties, we have recalculated the weighted-average dumping margin for Navigator. Specifically, we made a change to one post-sale price adjustment for Navigator's home market sales. For a more detailed discussion of this change,
Commerce determines that the following weighted-average dumping margin exists for the period March 1, 2019, through February 29, 2020:
Commerce intends to disclose to interested parties the calculations performed in connection with the final results within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of the notice of final determination in the
Pursuant to section 751(a)(2)(A) of the Act, and 19 CFR 351.212(b)(1), Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
Because Navigator's weighted-average dumping margin is not zero or
For entries of subject merchandise during the POR produced by Navigator for which it did not know its merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
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 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 Navigator will be the rate established in the final results of this administrative review; (2) for merchandise exported by producers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value (LTFV) investigation, but the producer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the producer of the subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 7.80 percent, the all-others rate established in the LTFV investigation.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(5) and 19 CFR 351.213(h)(1).
Notice of issuance of an amended Export Trade Certificate of Review to Northwest Fruit Exporters (“NFE”), Application No. 84-32A12.
The Secretary of Commerce, through the Office of Trade and Economic Analysis (“OTEA”), issued an amended Export Trade Certificate of Review (“Certificate”) to NFE on September 30, 2021.
Joseph Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number) or email at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001 21) (“the Act”) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. The regulations implementing Title III are found at 15 CFR part 325. OTEA is issuing this notice pursuant to 15 CFR 325.6(b), which requires the Secretary of Commerce to publish a summary of the certification in the
1. Removed the following companies as Members of the Certificate:
2. Changed the names of the following Members of the Certificate:
3. Changed the Export Product coverage for one Member:
NFE's amended Certificate Membership is as follows:
The amended Certificate is effective from July 2, 2021, the date on which the application for the Certificate was deemed submitted.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) finds that the producers/exporters subject to this administrative review did not make sales of subject merchandise at less than normal value during the period of review (POR) December 1, 2018, through November 30, 2019.
Applicable October 21, 2021.
David Goldberger or Adam Simons, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4136 or (202) 482-6172, respectively.
This review covers 30 producers/exporters of the subject merchandise. Commerce selected two companies, NEXTEEL Co., Ltd. (NEXTEEL) and SeAH Steel Corporation (SeAH), for individual examination.
On April 20, 2021, Commerce published the
The merchandise subject to the
All issues raised in the case and rebuttal briefs are listed in Appendix I to this notice and addressed in the Issues and Decision Memorandum. Interested parties can find a complete discussion of these issues and the corresponding recommendations in this public memorandum, which is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on a review of the record and comments received from interested parties regarding our
As a result of this review, we determine the following weighted-average dumping margins for the period December 1, 2018, through November 30, 2019:
The dumping margins for the exporters/producers not selected for individual review are listed in Appendix II.
We intend to disclose the calculations performed for NEXTEEL in connection with these final results to interested parties within five days of the date of publication of this notice, in accordance with 19 CFR 351.224(b).
Pursuant to section 751(a)(2)(C) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.212(b)(1), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review.
Pursuant to 19 CFR 351.212(b)(1), NEXTEEL reported the entered value of its U.S. sales such that we calculated importer-specific
For the companies which were not selected for individual review, because we are assigning these companies an assessment rate based on the deposit rate calculated for NEXTEEL and SeAH,
Commerce's “automatic assessment” practice will apply to entries of subject merchandise during the POR produced by NEXTEEL or SeAH for which the reviewed companies did not know that the merchandise they sold to the intermediary (
Consistent with its recent notice,
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 each specific company listed above will be equal to the weighted-average dumping margin
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Institute of Standards and Technology, Department of Commerce.
Notice; request for public comments.
The National Institute of Standards and Technology (NIST) requests public comments on the Draft
Comments must be received by 5:00 p.m. Eastern time on November 22, 2021. Written comments in response to this request for public comment should be submitted according to the instructions in the
Comments may be submitted by any of the following methods:
•
1. Go to
2. Click the “Comment Now!” icon, complete the required fields, and
3. Enter or attach your comments.
•
Please submit comments only and include your name, organization's name (if any), and cite “Promoting Access to Voting” in all correspondence.
For questions about this request for public comment contact: Kevin Mangold, NIST, at (301) 975-5628, or email
As stated in Executive Order 14019, Promoting Access to Voting,
NIST seeks public comments on the draft
The Draft is available electronically from the NIST website at:
Comments containing references, studies, research, and other empirical data that are not widely published should include copies of the referenced materials. All submissions, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. NIST reserves the right to publish relevant comments publicly, unedited and in their entirety. All relevant comments received will be made publicly available at
Personally identifiable information (PII), such as street addresses, phone numbers, account numbers or Social Security numbers, or names of other individuals, should not be included. NIST asks commenters to avoid including PII as NIST has no plans to redact PII from comments. Do not submit confidential business information, or otherwise sensitive or protected information. Comments that contain profanity, vulgarity, threats, or other inappropriate language or content will not be considered. NIST requests that commenters, to the best of their ability, only submit attachments that are accessible to people who rely upon assistive technology. A good resource for document accessibility can be found at:
Notice of meeting.
The Advisory Committee on Commercial Remote Sensing (“ACCRES”) will meet for 2 half-day meetings on November 3-November 4, 2021.
The meeting is scheduled as follows: November 3-November 4, 2021 from 11:00 a.m.-3:00 p.m. Eastern Daylight Time (EDT) each day.
The meeting will be a hybrid event with the Committee convening “in person” at the Herbert C. Hoover Building, 1401 Constitution Avenue NW, Washington, DC, and any public participants can attend virtually via GoToWebinar.
Tahara Dawkins, NOAA/NESDIS/CRSRA, 1335 East West Highway, G-101, Silver Spring, Maryland 20910; 301-427-2560 or
As required by Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (FACA) and its implementing regulations,
The meeting will be open to the public pursuant to Section 10(a)(1) of the FACA. During the meeting, the Committee will hear Commercial Satellite Imaging regulation from
The meeting will be held over two half-days and will be conducted via GoToWebinar. Please register for the meeting through the link:
Public comments are encouraged. Individuals or groups who would like to submit advance written comments, please email them to
Denali Commission.
Notice.
The Denali Commission (Commission) is an independent Federal agency based on an innovative Federal-state partnership designed to provide critical utilities, infrastructure and support for economic development and training in Alaska by delivering federal services in the most cost-effective manner possible. The Commission is required to develop an annual work plan for future spending which will be published in the
Comments and related material to be received by November 12, 2021.
Submit comments to the Denali Commission, Attention: Anne Stanislowski, 510 L Street, Suite 410, Anchorage, AK 99501.
Anne Stanislowski, Denali Commission, 510 L Street, Suite 410, Anchorage, AK 99501. Telephone: (907) 271-3011. Email:
By creating the Commission, Congress mandated that all parties involved partner together to find new and innovative solutions to the unique infrastructure and economic development challenges in America's most remote communities. Pursuant to the Denali Commission Act, the Commission determines its own basic operating principles and funding criteria on an annual federal fiscal year (October 1 to September 30) basis. The Commission outlines these priorities and funding recommendations in an annual work plan. The FY 2022 Work Plan was developed in the following manner.
• A workgroup comprised of Denali Commissioners and Commission staff developed a preliminary draft work plan.
• The preliminary draft work plan was published on
• A public hearing was held to record public comments and recommendations on the preliminary draft work plan.
• Written comments on the preliminary draft work plan were accepted for another ten days after the public hearing.
• All public hearing comments and written comments were provided to Commissioners for their review and consideration.
• Commissioners discussed the preliminary draft work plan in a public meeting and then voted on the work plan during the meeting.
• The Commissioners forwarded their recommended work plan to the Federal Co-Chair, who then prepared the draft work plan for publication in the
• At the conclusion of the Federal Register Public comment period Commission staff provides the Federal Co-Chair with a summary of public comments and recommendations, if any, on the draft work plan.
• If no revisions are made to the draft, the Federal Co-Chair provides notice of approval of the work plan to the Commissioners and forwards the work plan to the Secretary of Commerce for approval; or, if there are revisions the Federal Co-Chair provides notice of modifications to the Commissioners for their consideration and approval, and upon receipt of approval from Commissioners, forwards the work plan to the Secretary of Commerce for approval.
• The Secretary of Commerce approves the work plan.
• The Federal Co-Chair then approves grants and contracts based upon the approved work plan.
The Commission has historically received federal funding from several sources. The two primary sources at this time include the Energy & Water Appropriation Bill (“base” or “discretionary” funds) and an annual allocation from the Trans-Alaska Pipeline Liability (TAPL) fund. The proposed FY 2022 Work Plan assumes the Commission will receive $15,000,000 of base funds, which is the amount referenced in the reauthorization of the Commission passed by Congress in 2016 (ref: Pub. L. 114-322), and a $2,917,000 TAPL allocation based on discussions with the Office of Management and Budget (OMB). Approximately $4,000,000 of the base funds will be used for administrative expenses and non-project program support, leaving $11,000,000 available for program activities. The total base funding shown in the Work Plan also includes an amount typically available from project closeouts and other de-obligations that occur in any given year. Approximately $117,000 of the TAPL funds will be utilized for administrative expenses and non-project program support, leaving $2,800,000 available for program activities. Absent any new specific direction or limitations provided by Congress in the current Energy & Water Appropriations Bill, these funding sources are governed by
• Funds from the Energy & Water Appropriation are eligible for use in all programs.
• TAPL funds can only be used for bulk fuel related projects and activities.
• Appropriated funds may be reduced due to Congressional action, rescissions by OMB, and other federal agency actions.
• All Energy & Water and TAPL investment amounts identified in the work plan, are “up to” amounts, and may be reassigned to other programs included in the current year work plan, if they are not fully expended in a program component area or a specific project.
• Energy & Water and TAPL funds set aside for administrative expenses that subsequently become available, may be used for program activities included in the current year work plan.
Office of Career, Technical, and Adult Education, Department of Education.
Notice.
The Secretary announces tests, test forms, and delivery formats that the Secretary determines to be suitable for use in the National Reporting System for Adult Education (NRS). This notice relates to the approved information collections under OMB control numbers 1830-0027 and 1830-0567.
John LeMaster, Department of Education, 400
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll-free, at 1-800-877-8339.
On January 14, 2008, and as amended on August 19, 2016, we published in the
On August 7, 2020, the Secretary published in the
The Secretary took this action with respect to the previously approved tests and test forms, due to the Department's desire to minimize potential disruption in access to new tests for its grantees caused by the Novel Coronavirus Disease (COVID-19).
In this notice, the Secretary publishes the same list of approved tests and test forms as was published in the August 2020 notice.
Adult education programs must use only the forms and computer-based delivery formats for the tests approved in this notice. If a particular test form or computer delivery format is not explicitly specified for a test in this notice, it is not approved for use in the NRS. TESTS DETERMINED TO BE SUITABLE FOR USE IN THE NRS FOR A SEVEN-YEAR PERIOD FROM THE PUBLICATION DATE OF THE ORIGINAL NOTICE IN WHICH THEY WERE ANNOUNCED:
The Secretary has determined that the following test is suitable for use in Literacy/English Language Arts and Mathematics at all ABE levels of the NRS until September 7, 2024:
(1)
The Secretary has determined that the following test is suitable for use in Literacy/English Language Arts at all ABE levels of the NRS until February 5, 2025:
(1)
The Secretary has determined that the following tests are suitable for use at ABE levels 2 through 6 of the NRS until May 2, 2026:
(1)
(2)
The Secretary has determined that the following test is suitable for use in Mathematics at all ABE levels of the NRS until March 7, 2023:
(1)
The Secretary has determined that the following tests are suitable for use at all ESL levels of the NRS until February 2, 2023:
(1)
(2)
(3)
(4)
(5)
Under certain circumstances, the Secretary may revoke the determination that a test is suitable (see § 462.12(e)). If the Secretary revokes the determination of suitability, the Secretary announces the revocation, as well as the date by which States and local eligible providers must stop using the revoked test, through a notice published in the
You may also access documents of the Department published in the
Office of Finance and Operations, Department of Education.
Notice.
The Secretary publishes a list of persons who may be named to serve on the Performance Review Board that oversees the evaluation of performance appraisals for Senior Executive Service members of the Department of Education (Department).
These appointments are effective on October 21, 2021.
Jennifer Geldhof, Director, Executive Resources Division, Office of Human Resources, Office of Finance and Operations, U.S. Department of Education, 400 Maryland Avenue SW, Room 210-00, LBJ, Washington, DC 20202-4573. Telephone: (202) 580-9669. Email:
If you use a telecommunications device for the deaf (TDD), or text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Under the Civil Service Reform Act of 1978, Public Law 95-454 (5 U.S.C. 4314(c)(4)), the Department must publish in the
You may also access documents of the Department published in the
Southeastern Power Administration (Southeastern), Department of Energy (DOE).
Notice of intention to begin a public process.
Pursuant to its Procedure for Public Participation in the Formulation of Marketing Policy, published in the
Comments and proposals must be submitted on or before December 20, 2021.
Written comments or proposals should be submitted to Virgil G. Hobbs III, Administrator, Southeastern Power Administration, 1166 Athens Tech Road, Elberton, GA 30635-6711, (706) 213-3800,
Leon Jourolmon IV, General Counsel, (706) 213-3800,
A “Final Power Marketing Policy Cumberland System of Projects” was developed and published in the
Under Section 5 of the Flood Control Act of 1944 (16 U.S.C. 825s), Southeastern is responsible for the transmission and disposition of electric power and energy from reservoir projects operated by the Department of the Army. Furthermore, Southeastern must transmit and dispose of such power and energy in a manner that offers the most widespread use at the lowest possible rates to consumers consistent with sound business principles. Rate schedules are drawn with regards to the recovery of the cost of producing and transmitting such electric energy.
The Cumberland System consists of nine projects: Barkley, Center Hill, Cheatham, Cordell Hull, Dale Hollow, Laurel, Old Hickory, J. Percy Priest, and Wolf Creek. The power from the projects is currently marketed to Preference Customers located in the service areas of the Tennessee Valley Authority, Big Rivers Electric Corporation, Duke Energy Progress, East Kentucky Power Cooperative, Kentucky Utilities, Municipal Electric Agency of Mississippi, Mississippi Delta Energy Agency, the seven-member Cooperative Energy currently receiving Cumberland power, and Southern Illinois Power Cooperative.
Southeastern has been using the Generation Attribute Tracking System (GATS) provided through PJM Interconnection, LLC, for the Kerr-Philpott System of Projects. The attributes are unbundled from the megawatt-hour of energy produced and recorded onto a certificate. These certificates may be used by electricity suppliers and other energy market participants to comply with relevant state policies and regulatory programs and to support voluntary “green” electricity markets. Southeastern is considering using the similar M-RETS® product or another product for distributing certificates to current Preference Customers with allocations of power from the Cumberland System.
The REC tracking system Southeastern selects should be capable of tracking environmental attributes used for voluntary claims in all states, provinces, and territories in North America.
Upon formulating a proposed revision to the Cumberland System marketing policy to address RECs, Southeastern will publish the proposal in the
This document of the Department of Energy was signed on October 12, 2021, by Virgil G. Hobbs III, Administrator for Southeastern Power Administration, 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
On April 8, 2021, Transcontinental Gas Pipe Line Company, LLC filed an application in Docket No. CP21-134-000 requesting authorization pursuant to Section 7(b) of the Natural Gas Act to abandon certain natural gas pipeline facilities. The proposed project is known as the Happytown Abandonment Project (Project) and would involve abandoning pipeline segments totaling approximately 29.6 miles, as well as appurtenant facilities. The Project would abandon inactive facilities, which would have no impact on Transco's operations and the ability of Transco's Mainlines A, B, and C to provide natural gas service.
On April 22, 2021, the Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's Environmental Assessment (EA) for the Project. This instant notice identifies the FERC staff's planned schedule for the completion of the EA for the Project.
If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
Transco proposes to abandon approximately 29.6 miles of pipeline comprising of 8-, 10-, and 12-inch-diameter pipeline segments in Pointe Coupée Parish, Louisiana. Of the 29.6 miles, approximately 28.8 miles would be abandoned in place, and the remaining 0.8 mile of pipeline would be abandoned by removal. Additionally, Transco would remove meter stations 2040, 2328, 3267, and 2327 also located in Pointe Coupée Parish. According to Transco, the facilities proposed to be abandoned have not been utilized in over a year and are not expected to be used in the future.
On August 19, 2021, the Commission issued a
In order to receive notification of the issuance of the EA and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
On February 9, 2021, BOST5 Hydroelectric LLC (BOST5) filed an application to amend the license for the Red River Lock and Dam No. 5 Hydroelectric Project. On September 20, 2021, BOST5 filed a notice of withdrawal of its application for amendment of license.
No motion in opposition to the notice of withdrawal has been filed, and the Commission has taken no action to disallow the withdrawal. Pursuant to Rule 216(b) of the Commission's Rules of Practice and Procedure,
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that on October 4, 2021, Columbia Gas Transmission, LLC (Columbia), 700 Louisiana Street, Suite 1300, Houston, Texas 77002, filed in the above referenced docket a prior notice pursuant to sections 157.205 and 157.208(b) of the Federal Energy Regulatory Commission's regulations under the Natural Gas Act (NGA), and Columbia's blanket certificate issued in Docket No. CP83-76-000, for authorization to: (i) Install approximately 3.25-mile-long, 24-inch-diameter pipeline extension from Columbia's existing crossover between Line A-159 and Line A-79 (Crossover) eastward to the existing Mt. Sterling Regulator Station (RS); (ii) replace approximately 20 feet of existing 20-inch-diameter pipeline at the Crossover; (iii) replace one existing mainline valve and two non-piggable elbows at three separate locations along existing Line A-159; and (iv) install new aboveground bi-directional launcher/receiver settings and associated piping at the existing Mt. Sterling RS and Howell RS. All of the above facilities are located in Madison and Greene Counties, Ohio (Line A-159 Extension Project). The project will allow Columbia to reconfigure gas flow, eliminate 36 pounds per square inch gauge (psig) pressure drop between the existing Mt. Sterling RS and the existing start of Line A-159, and maximize delivery capabilities on its system. Columbia states that the maximum operating pressure (MAOP) for the project will not exceed the current MAOP of 500 psig. The estimated cost for the project is $27.3 million, all as more fully set forth in the request which is on file with the Commission and open to public inspection.
In addition to publishing the full text of this document in the
Any questions concerning this application should be directed to David Alonzo, Manager, Project
There are three ways to become involved in the Commission's review of this project: You can file a protest to the project, you can file a motion to intervene in the proceeding, and you can file comments on the project. There is no fee or cost for filing protests, motions to intervene, or comments. The deadline for filing protests, motions to intervene, and comments is 5:00 p.m. Eastern Time on December 14, 2021. How to file protests, motions to intervene, and comments is explained below.
Pursuant to section 157.205 of the Commission's regulations under the NGA,
Protests must comply with the requirements specified in section 157.205(e) of the Commission's regulations,
Any person has the option to file a motion to intervene in this proceeding. Only intervenors have the right to request rehearing of Commission orders issued in this proceeding and to subsequently challenge the Commission's orders in the U.S. Circuit Courts of Appeal.
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
All timely, unopposed motions to intervene are automatically granted by operation of Rule 214(c)(1). Motions to intervene that are filed after the intervention deadline are untimely and may be denied. Any late-filed motion to intervene must show good cause for being late and must explain why the time limitation should be waived and provide justification by reference to factors set forth in Rule 214(d) of the Commission's Rules and Regulations. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies (paper or electronic) of all documents filed by the applicant and by all other parties.
Any person wishing to comment on the project may do so. The Commission considers all comments received about the project in determining the appropriate action to be taken. To ensure that your comments are timely and properly recorded, please submit your comments on or before December 14, 2021. The filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding.
There are two ways to submit protests, motions to intervene, and comments. In both instances, please reference the Project docket number CP22-3-000 in your submission.
(1) You may file your protest, motion to intervene, and comments by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your submission by mailing it to the address below.
The Commission encourages electronic filing of submissions (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served on the applicant either by mail or email (with a link to the document) at: David Alonzo, Manager, Project Authorizations, Columbia Gas Transmission, LLC, 700 Louisiana Street, Suite 1300, Houston, Texas 77002-2700, at (832) 320-5477 or
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
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.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice.
Pursuant to the Federal Advisory Committee Act (FACA), the Environmental Protection Agency (EPA) is announcing a virtual, open, public meeting of the Farm, Ranch, and Rural Communities Advisory Committee (FRRCC) on November 15-16, 2021, with remote participation only. There will be no in-person gathering for this meeting.
This virtual public meeting will be held on Monday, November 15, 2021, from 11:00 a.m. to approximately 5:00 p.m., and Tuesday, November 16, 2021, from 11:00 a.m. to approximately 5:00 p.m., Eastern Daylight Time. Members of the public seeking to view the meeting (but not provide oral comments) may register any time prior to the meeting. Members of the public seeking to make oral comments during the virtual meeting must register and contact the Designated Federal Officer directly by 12:00 p.m. Eastern Daylight Time on November 8, 2021 to be placed on a list of registered commenters and receive special instructions for participation.
To register and receive information on how to attend this virtual meeting, please visit:
Emily Selia, Designated Federal Officer (DFO), at
The purpose of the FRRCC is to provide policy advice, information, and recommendations to the EPA Administrator on a range of environmental issues and policies that are of importance to agriculture and rural communities. The purpose of this meeting is to discuss topics of relevance to agriculture and rural communities, specifically the FRRCC's recommendations on the two charge topics (1) creating a holistic pesticide program for the future and (2) supporting inter-agency environmental benchmarks with interagency partners on the issues of water quality and quantity and food loss and waste. A copy of the FRRCC charges and meeting agenda will be posted at
This meeting will be conducted as a virtual conference. You may attend by registering online before the meeting to receive information on how to participate. You may also submit written or oral comments for the committee by contacting the DFO directly per the processes outlined below.
Attendees should register via the link on this website prior to the meeting to receive information on how to participate in the virtual meeting:
The Meeting Agenda and other materials for the virtual conference will be posted on the FRRCC website at
Persons with disabilities who wish to request reasonable accommodations to participate in this event may contact the DFO at
Federal Communications Commission.
Notice.
In this document, the Commission begins the process of authorizing standard power unlicensed operations in the 6 GHz band by inviting proposals from parties interested in operating an automated frequency coordination (AFC) system in accordance with the
Initial AFC system proposals are due on November 30, 2021, and comments regarding the proposals are due on December 21, 2021.
Federal Communications Commission, 45 L Street NE, Washington, DC 20554.
Nicholas Oros, Office of Engineering and Technology, 202-418-0636,
This is a summary of the Commission's document,
1. The
2. The
3. Section 15.407(l)(1) of the Commission's rules specifies the propagation model the AFC system must use for determining frequency availability and power levels, which depends on the distance between the standard-power device and the licensed microwave station. For separation distances of 30 meters or less, the AFC system will use a free space pathloss model. When the separation distance is greater than 30 meters, but less than 1 kilometer, the AFC system will use the WINNER II model. The WINNER II model is one of the most widely used and well‐known channel models in the world and was developed from measurements conducted by the WINNER organization, as well as results from academic literature. When using the WINNER II model, the AFC system should use site-specific information, including building and terrain data, for determining the line-of-sight/non-line-of-sight path component where this information is available. For evaluating paths where this data is not available, the rules specify probabilistic combining of the line-of-sight and non-line-of-sight path into a single path-loss. For distances greater than 1 kilometer, the AFC system will use the Irregular Terrain Model (ITM) combined with a clutter model for the local environment. The ITM has been widely available and accepted since the early 1980s, has been used by the Commission for interference prediction in other proceedings, and is the propagation model currently used to determine spectrum availability by the spectrum access systems (SAS) that are managing spectrum access for the 3550-3700 MHz band in the Citizens Broadband Radio Service. When using the ITM, the rules specify that AFC systems are to use 1 arc-second digital elevation terrain data and, for locations where such data is not available, use the most granular digital elevation terrain data available. To account for the effects of clutter, such as from buildings and foliage, the AFC system should combine use of the ITM with statistical clutter model ITU-R P.2108 for urban and suburban environments and the ITU-R P.452-16 clutter model for rural environments.
4. In accordance with the
5. As specified in the
6. Applicants who receive a conditional approval will then be required to allow access to their AFC system for a public trial period to provide interested parties an opportunity to check that it provides accurate results. This trial period will include thorough testing, both in a controlled environment (
7. The AFC system proposals must describe how the prospective AFC system operator will comply with the requirements and core functions described in § 15.407(k) of the Commission's rules and the
1. AFC system operator contact information, including name, phone number and email address that Commission staff may use for all AFC system related inquiries, such as information and data requests or to provide enforcement instructions.
2. A technical diagram showing the architecture of the AFC system with a brief description of its operation.
3. A description of whether the AFC system software is based on a propriety implementation or open source.
4. A demonstration that the prospective AFC system operator possesses sufficient technical expertise to operate an AFC system.
5. A description of the prospective AFC system operator's recordkeeping policies, including registration record retention as well as retention of historical frequency availability data.
6. A description of how the prospective AFC system operator will handle unanticipated situations that may disrupt performance of the system's required functions—ranging from exceptional cases that affect the system's ability to perform its required functions in isolated instances to cases involving the type of widespread disruption that an event like a system failure might cause.
7. A description of the methods (
8. If the prospective AFC system operator will not be performing all AFC functions, information on (1) the entities that will be responsible for operating other functions of the AFC system; and (2) how the Commission can ensure that all of the requirements for AFC systems in the rules are satisfied when AFC functions are divided among multiple entities.
9. A description of how the prospective AFC system operator will provide access to their AFC system for a public trial period which will include thorough testing.
10. An affirmation that the prospective AFC system operator, and any entities responsible for operating other functions of the AFC system under the control of the AFC system operator, will comply with all of the applicable rules as well as applicable enforcement mechanisms and procedures.
8. Prospective AFC system operators must file proposals, and any supplements thereto, with the Commission using the Commission's Electronic Comment Filing System (ECFS).
9.
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, invites the general public and other Federal agencies to take this opportunity to comment on the request to renew the existing information collections described below (OMB Control No. 3064-0018;-0165;-0183; and-0195).
Comments must be submitted on or before November 22, 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,
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Section 941 of Dodd-Frank requires the Board, the FDIC, the OCC (collectively, the “Federal banking agencies”), the Commission and, in the case of the securitization of any “residential mortgage asset,” together with HUD and FHFA, to jointly prescribe regulations that (i) require a an issuer of an asset-backed security or a person who organizes and initiates an asset backed securities transaction by selling or transferring assets, either directly or indirectly, including through an affiliate, to the issuer (“issuer or organizer”) to retain not less than five percent of the credit risk of any asset that the issuer or organizer, through the issuance of an asset-backed security (“ABS”), transfers, sells or conveys to a third party and (ii) prohibit an issuer or organizer from directly or indirectly hedging or otherwise transferring the credit risk that the issuer or organizer is required to retain under section 941 and the agencies' implementing rules. Exempted from the credit risk retention requirements of section 941 are certain types of securitization transactions, including ABS collateralized solely by qualified residential mortgages (“QRMs”), as that term is defined in the Rule. In addition, Section 941 provides that the agencies must permit an issuer or organizer to retain less than five percent of the credit risk of residential mortgage loans, commercial real estate (“CRE”) loans, commercial loans and automobile loans that are transferred, sold or conveyed through the issuance of ABS by the issuer or organizer, if the loans meet underwriting standards established by the Federal banking agencies.
The FDIC implemented Section 941 of Dodd-Frank through 12 CFR part 373 (the “Rule”). The Rule defines a securitizer as (1) The depositor of the asset-backed securities (if the depositor is not the sponsor); or (2) The sponsor of the asset-backed securities.
Part 373 contains several requirements that qualify as information collections under the Paperwork Reduction Act of 1995 (“PRA”). The information collection requirements are found in §§ 373.4; 373.5; 373.6; 373.7; 373.8; 373.9; 373.10; 373.11; 373.13; 373.15; 373.16; 373.17; 373.18; and 373.19(g). The recordkeeping requirements relate primarily to (i) the adoption and maintenance of various policies and procedures to ensure and monitor compliance with regulatory requirements and (ii) certifications, including as to the effectiveness of internal supervisory controls. The required disclosures for each risk retention option are intended to provide investors with material information concerning the sponsor's retained interest in a securitization transaction (
To determine the total paperwork burden for the requirements contained in the Credit Risk Retention Rule, FDIC first estimated the universe of sponsors that would be required to comply with the disclosure and recordkeeping requirements. FDIC estimated that approximately 270 unique sponsors conduct ABS offerings each year.
Next, FDIC estimated how many respondents keep records and make required disclosures by estimating the proportionate amount of offerings per year for each agency. The estimate was based on the average number of ABS offerings from 2007 through 2017. The agencies estimated the total number of annual offerings per year to be 1,400
(a) 13 Offerings per year will be subject to disclosure and recordkeeping requirements under § 373.11, which are divided equally among the four agencies (
(b) 110 offerings per year were estimated to be subject to disclosure and recordkeeping requirements under §§ 373.13 and 373.19(g), which were divided proportionately among the agencies based on the entity percentages described above:
(i) Nine (9) offerings per year for the Board (8%);
(ii) 13 offerings per year for the FDIC (12%);
(iii) 14 offerings per year for the OCC (13%);
(iv) 74 offerings per year for the Commission (67%).
(c) 132 offerings per year were estimated to be subject to the disclosure requirements under § 373.15, which were divided proportionately among the agencies based on the entity percentages described above:
(i) 11 Offerings per year for the Board (8%);
(ii) 16 offerings per year for the FDIC (12%);
(iii) 17 offerings per year for the OCC (13%);
(iv) 88 offerings per year for the Commission (67%).
(d) Of these 132 offerings per year, 44 offerings per year were estimated to be subject to disclosure and recordkeeping requirements under §§ 373.16, 373.17, and 373.18, respectively, which were divided proportionately among the agencies based on the entity percentages described above:
(i) 4 offerings per year for each section for the Board (8%);
(ii) 6 offerings per year for each section for the FDIC (12%);
(iii) 6 offerings per year for each section for the OCC (13%);
(iv) 29 offerings per year for each section for the Commission (67%).
To obtain the estimated number of responses (equal to the number of offerings) for each option in subpart B of the rule, FDIC multiplied the number of offerings estimated to be subject to the base risk retention requirements (
The agencies assumed that 90% of institutions use the vertical interest form of risk retention while the remaining 10% use the combined vertical and horizontal form of risk retention. The burden tables above use this allocation and of the 45 responses attributed to § 373.4, we allocated 40 (90%) to the vertical form of risk retention and 5 (10%) to the other two options (1 response to the horizontal form of risk retention and 4 responses to the combined vertical and horizontal form of risk retention.
FDIC believes that the burden estimation methodology previously used overestimates the number of ABS offerings by FDIC-supervised institutions. Furthermore, the OCC has confirmed that the estimates it used for its 2021 renewal of OCC's Credit Risk Retention information collection are based on the expertise of the OCC's subject matter experts rather than the 2015 interagency methodology.
Potential respondents to this information collection (IC) are FDIC-supervised insured depository institutions (“IDIs”) including state nonmember banks, state savings institutions, insured state branches of foreign banks, and any subsidiary of the aforementioned entities. As of December 31, 2020, the FDIC supervised 3,227 state nonmember banks, state savings institutions, and insured state branches of foreign banks. Of these 3,227 IDIs, 2,382 are small for the purposes of the Regulatory Flexibility Act (RFA).
Respondents to this information collection are FDIC-supervised IDIs that are securitizers of ABS. To generate a universe of potential securitizers, FDIC obtained data from Call Reports for the quarter ending on December 31 for the years 2018, 2019, and 2020, for all FDIC-supervised IDIs that reported a non-zero amount in either: (a) Outstanding principal balance of assets sold and securitized with servicing retained or with recourse or other seller-provided credit enhancements;
Once the set of deals, with corresponding FDIC-supervised securitizers, was constructed, FDIC matched each deal with the sections in Part 373 that imposed one or more PRA requirements on that deal. Most sections impose both disclosure and recordkeeping requirements.
(a) Two FDIC-supervised IDIs were involved in deals in which credit risk was retained through horizontal interest (§ 373.4(a)(2) Standard Risk Retention—Horizontal Interest). These two IDIs were involved in four, three, and four such deals in 2018, 2019, and 2020, respectively. FDIC therefore estimates two annual respondents, with an average annual response rate of two responses per respondent, for the disclosure requirement associated with § 373.4(a)(2) and the corresponding reporting requirement in § 373.4(d).
(b) Two FDIC-supervised IDIs were involved in deals in which credit risk was retained through vertical interest (§ 373.4(a)(1) Standard Risk Retention—Vertical Interest). These two IDIs were involved in 0, 0, and 13 such deals in 2018, 2019, and 2020, respectively. FDIC therefore estimates two annual respondents, with an average annual response rate of two responses per respondent, for the disclosure requirement associated with § 373.4(a)(1) and the corresponding reporting requirement in § 373.4(d).
(c) Three FDIC-supervised IDIs were involved in deals in which credit risk was retained through revolving master trusts (§ 373.5 Revolving Master Trusts). These three IDIs were involved in eight, six, and zero such deals in 2018, 2019, and 2020, respectively. FDIC therefore estimates three annual respondents, with an average annual response rate of two responses per respondent, for the disclosure requirement associated with § 373.5 and the corresponding reporting requirement in § 373.5(k)(3).
Using the above methodology, FDIC could not find any ABS offerings that (1) involved an FDIC-supervised IDI or subsidiary of an FDIC-supervised IDI as a securitizer and (2) were subject to the PRA requirements listed in one or more of the following ten sections: §§ 373.4(a)(3); 373.6; 373.7; 373.10; 373.11; 373.13; 373.15; 373.16; 373.17; and 373.18. It is possible that an FDIC-supervised IDI or subsidiary of an FDIC-supervised IDI would be a respondent to burden items related to these sections in the next three years. As such, FDIC is using one respondent and one annual response per respondent for the disclosure and recordkeeping requirements related to each of these ten sections to preserve the associated burden estimate.
Of the seven unique institutions with securitizations between 2018 and 2020, none are considered small for the purposes of the RFA.
The estimated time per response varies by burden item, and these estimates are unchanged from the previous renewal which remains in line with the burden estimated adopted by the agencies.
Two burden items included in the 2018 information collection request have been removed from this renewal request. The disclosure burden related to § 373.8 Fannie Mae and Freddie Mac was removed as FDIC has determined that it is not possible for FDIC-supervised IDIs or subsidiaries of FDIC-supervised IDIs to be respondents to this burden item. The disclosure burden related to § 373.9 Open Market Collateralized Loan Obligations (“CLOs”) was removed because the D.C. Circuit Court invalidated section 941 of Dodd-Frank as it applies to CLOs.
The estimated annual burden, in hours, is the product of the estimated number of respondents, number of responses per respondent, and time per response, as summarized in the table below. The total estimated annual burden for this information collection is 376 hours, a 3,075-hour reduction from the 2018 burden estimate, which reflects
4.
This information collection was last approved for renewal on October 16, 2018 (“2018 ICR”) with a total annual burden estimate of 421 hours. The 2018 ICR contains two recordkeeping and two reporting IC requirements. The FDIC notes that the ASC has issued its own regulations or guidance implementing the requirements from the Act related to the information to be presented to the ASC by the participating states, and submitted an IC related to this reporting requirement.
For each of the remaining ICs, FDIC's estimation methodology is to compute the total estimated burden hours for that IC and then assign an agreed-upon share of the burden hours to each of the regulatory agencies (FDIC, FRB, OCC, and FHFA).
This IC relates to the written notice of appraiser removal from the network or panel pursuant to § 323.10. The number of respondents is estimated to be equal to the number of appraisers who leave the profession each year multiplied by the estimated percentage of appraisers who work for AMCs. The number of appraisers who leave is calculated by adding the number of appraisers who are laid off or resign to the number of appraisers that have had their licenses revoked or surrendered. This estimation methodology is similar to the methodology used in the 2018 ICR.
The number of appraisers who are laid off or resign each year is estimated by multiplying the annual rate of “Total separations” by the number of appraisers for each year. Using data from the Bureau of Labor Statistics (BLS) for the finance and insurance industry, shown in Table 1 below, the annual rate of “Total separations” in 2020 is 25.1 percent.
The number of appraisers is estimated by using the number of appraisers in 2020 as a proxy for the level of appraiser employment over the next three years.
Given the data summarized above, the number of appraisers who are laid off or resign is estimated by multiplying the annual number of appraisers by the annual separation rate 86,000 × 25.1 percent = 21,586.
As stated above, respondents to this IC also include appraisers who have their license revoked or surrendered each year. According to the ASC, between January 1, 2010 and December 31, 2019, the counts of appraisers who have had their license revoked or surrendered are 804 and 576, respectively.
The number of appraisal removal notices for AMCs is then calculated by adding the estimate of appraisers who are laid off or resign to the number of appraisers who have their licenses revoked or surrendered, and multiplying by the estimated percent of total appraisers who work for AMCs. According the Appraisal Institute, approximately 81 percent of appraisers are sole proprietors, executives in a firm, or are listed as having other forms of employment status.
The estimated number of notices per year is lower than the 2018 ICR estimate by 5,751 notices.
The second information collection pertains to developing and maintaining a state licensing program for AMCs pursuant to § 323.14. Section 323.14 requires that each state electing to register AMCs for purposes of permitting AMCs to provide appraisal management services relating to covered transactions in the state must submit to the ASC certain information required under the Rule and any additional information required by the ASC concerning AMCs. Thus, this burden falls on the states, especially those that have not developed a system to register and oversee AMCs. According to the ASC there are four states (the territories of Guam, Mariana Islands, Puerto Rico, and the U.S. Virgin Islands) that have not developed a system to register and oversee AMCs.
The third information collection relates to disclosure requirements for
The fourth information collection relates to AMC disclosure requirements for federally regulated AMCs pursuant to Section 323.13(c). The disclosure requirements for this IC include registration limitations/requirements as well as information regarding the determination of the AMC National Registry fee. Of the 3,854 active AMCs, 37 are federally regulated AMCs.
For IC #1, FDIC assumes an AMC receives one written notice from each appraiser
For IC #2, FDIC assumes that states without a registration and licensing program would develop and maintain a single program for each state. Thus, the estimated number of responses per respondent is one.
For IC #3 and IC #4, FDIC estimates the number of responses per respondent as the number of states that do not have an AMC registration program in which the average state-regulated or federally regulated AMC operates. As discussed previously, there are four states that currently do not have an AMC registration program. As noted in the Supporting Statement accompanying the 2018 ICR, a 2013 survey conducted by the CFPB found that the average AMC operates in 19.56 states.
For IC #1, as discussed above, the AMC receives (or sends) a written notice in the event an appraiser no longer serves on the panel. Since this event occurs on occasion, FDIC uses “On Occasion” as the Frequency of Reponses for this IC and assumes a frequency of one.
For IC #2, FDIC assumes the states that have currently elected not to register and oversee AMCs could choose to do so at any time. Since this event occurs on occasion, FDIC uses “On Occasion” as the Frequency of Reponses for this IC and assumes a frequency of one.
For IC #3 and IC #4, FDIC assumes the state-regulated or federally regulated AMCs that are currently operating in a state but have not yet registered with that state could choose to do so any time. Since this event occurs on occasion, FDIC uses “On Occasion” as the Frequency of Reponses for this IC and assumes a frequency of one.
The 2018 ICR estimate of the hour burden per written notice of appraiser removal was 0.08 hours. The FDIC believes this estimate remains reasonable and appropriate for this IC and uses 0.08 hours as the estimated time per response for IC #1.
The 2018 ICR estimate of the hour burden for a state without a registration program or system to establish one was 40 hours. The FDIC believes this estimate remains reasonable and appropriate for this IC and uses 40
The 2018 ICR estimate of the hour burden for a state-regulated or federally regulated AMC to register in a state in which it operates was one hour. The FDIC believes this estimate remains reasonable and appropriate for IC #3 and IC #4 and uses one hour each as the estimated time per response for IC #3 and IC #4.
The estimated annual burden, in hours, for the four agencies (FDIC, FRB, OCC, and FHFA) is the product of the estimated number of respondents per year allocated to each agency, the number of responses per respondent per year, and the hours per response, as summarized in Tables 3 and 4 below. For IC #1, and IC #3, the estimated respondents are split between the four agencies the FDIC, FRB, OCC, and FHFA, at a ratio of 3:3:3:1.
The estimated hour burden in the current ICR (8,208) higher than the 2018 ICR estimate by 6,763 hours. The increase is predominantly driven by the increase in the aggregate estimated number of respondents to IC #3 and IC #4. As discussed previously, the estimated number of respondents in higher than the estimate in the 2018 ICR due to the definitive information available from the National Registry after 2018.
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, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
Tuesday, October 26, 2021 at 10:00 a.m. and its continuation at the conclusion of the open meeting on October 28, 2021.
1050 First Street NE, Washington, DC (This meeting will be a virtual meeting).
This Meeting will be closed to the public.
Compliance matters pursuant to 52 U.S.C. 30109.
Matters concerning participation in civil actions or proceedings or arbitration.
Judith Ingram, Press Officer. Telephone: (202) 694-1220.
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than November 4, 2021.
1.
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue, NW, Washington DC 20551-0001, not later than November 5, 2021.
1.
1.
C. Federal Reserve Bank of Kansas City (Jeffrey Imgarten, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than November 22, 2021.
1.
Federal Trade Commission.
Proposed consent agreement; request for comment.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices. The attached Analysis of Proposed Consent Order to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before November 22, 2021.
Interested parties may file comments online or on paper by following the instructions in the Request for Comment part of the
Julia Solomon Ensor (202-326-2377), Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before November 22, 2021. Write “Resident Home LLC; File No. 202 3179” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the
Due to the COVID-19 pandemic and the agency's heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comments online through the
If you prefer to file your comment on paper, write “Resident Home; File No. 202 3179” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex D), Washington, DC 20580; or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Because your comment will be placed on the publicly accessible website at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record.
Visit the FTC website at
The Federal Trade Commission (“FTC” or “Commission”) has accepted, subject to final approval, an agreement containing a consent order from Resident Home LLC, also d/b/a Nectar Sleep, DreamCloud Sleep, Awara Sleep, Level Sleep, Bundle Living, 1771 Living, Cloverlane, Wovenly Rugs, Sleep Authority, and Home Well Designed, and Ran Reske (“Respondents”). The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments from interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement or make final the agreement's proposed order.
This matter involves Respondents' advertising of DreamCloud mattresses as of U.S. origin. According to the FTC's complaint, Respondents represented that DreamCloud mattresses were “proudly made with 100% USA-made premium quality materials.” However, the complaint alleges that, in numerous instances, DreamCloud mattresses are wholly imported or incorporate significant imported materials. In all instances, DreamCloud mattresses are finished overseas. Based on the foregoing, the complaint alleges that Respondents engaged in deceptive acts or practices in violation of Section 5(a) of the FTC Act.
The proposed consent order contains provisions designed to prevent Respondents from engaging in similar acts and practices in the future. Consistent with the FTC's Enforcement Policy Statement on U.S.-Origin Claims, Part I prohibits Respondents from making U.S.-origin claims for their products unless either: (1) The final assembly or processing of the product occurs in the United States, all significant processing that goes into the product occurs in the United States, and all or virtually all ingredients or components of the product are made and sourced in the United States; (2) a clear and conspicuous qualification appears immediately adjacent to the representation that accurately conveys the extent to which the product contains foreign parts, ingredients or components, and/or processing; or (3) for a claim that a product is assembled in the United States, the product is last substantially transformed in the United States, the product's principal assembly takes place in the United States, and United States assembly operations are substantial.
Part II prohibits Respondents from making any country-of-origin claim about a product or service unless the claim is true, not misleading, and Respondents have a reasonable basis substantiating the representation.
Parts III through V are monetary provisions. Part III imposes a judgment of $753,300. Part IV includes additional monetary provisions relating to collections. Part V requires Respondents to provide sufficient customer information to enable the Commission to administer consumer redress, if appropriate.
Part VI is a notice provision requiring Respondents to identify and notify certain DreamCloud mattress purchasers of the FTC's action within 30 days after the issuance of the order, or within 30 days of the customer's identification, if identified later. Respondents are also required to submit reports regarding their notification program.
Parts VII through IX are reporting and compliance provisions. Part VII requires Respondents to acknowledge receipt of the order, to provide a copy of the order to certain current and future principals, officers, directors, and employees, and to obtain an acknowledgement from each such person that they have received a copy of the order. Part VIII requires Respondents to file a compliance report within one year after the order becomes final and to notify the Commission within 14 days of certain changes that would affect compliance with the order. Part IX requires Respondents to maintain certain records, including records necessary to demonstrate compliance with the order. Part X requires Respondents to submit additional compliance reports when requested by the Commission and to permit the Commission or its representatives to interview Respondents' personnel.
Finally, Part XI is a “sunset” provision, terminating the order after twenty (20) years, with certain exceptions.
The purpose of this analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the proposed order or to modify its terms in any way.
By direction of the Commission, Commissioners Phillips and Wilson dissenting.
The parties named in this matter are no strangers to the Commission. In 2018, the FTC finalized a settlement with Nectar Brand LLC (also doing business as DreamCloud, LLC, and DreamCloud Brand LLC) (“Nectar”) related to false “Assembled in USA” claims about the company's wholly imported mattresses. Shortly after that settlement, CEO Ran Reske and Nectar's other officers reorganized the company and its subsidiaries under a new ultimate parent entity, Resident Home LLC (“Resident”). Despite the reorganization and being under active compliance monitoring as part of the 2018 Nectar order, old habits die hard. Misleading made in USA (“MUSA”) claims continued to appear on the website of DreamCloud Brand LLC in 2019 and 2020, contrary to Reske's statements made under penalty of perjury as part of required compliance reports. Today's action sends an unambiguous message about the importance of complying with prior Commission orders. In addition to injunctive provisions, the proposed settlement contains monetary relief of $753,300 and requires Resident to notify consumers of the FTC's action. Together with the Commission's recent MUSA rule,
Wow, that was fast. Soon after the Federal Trade Commission “punished” Nectar Sleep through a no-money, no-fault order, the company and its affiliates clearly realized the FTC wasn't serious about Made in USA fraud, so here we are again.
FTC orders are not suggestions, but many bad actors view them as such.
The Commission is proposing to settle the matter by ordering Resident Home, Nectar Sleep's new parent company, to pay $753,300. The Commission's complaint also charges Resident's CEO, Ran Reske, with serious wrongdoing. Reske signed a report, under penalty of perjury, stating that Resident Home had removed all covered Made in USA claims from its subsidiaries' websites and that Resident had never made Made in USA claims about its DreamCloud mattress. This was false.
The proposed settlement binds Nectar Sleep, as well as its new parent company, ensuring that any corporate musical chairs will not allow the company to dodge the FTC's order. The proposed order also requires the companies to provide notice to consumers who purchased a mattress while the false claims appeared.
Commissioner Slaughter has rightfully noted that the Commission must use all of its tools to protect the marketplace and make victims whole. This case is no exception. The settlement is reasonable and squarely within the Commission's legal authority.
My dissenting colleagues purport that this proposed action—which was agreed to by Resident Home and Reske—is not authorized by statute. Their arguments fail on policy and legal grounds.
Commissioners Phillips and Wilson have consistently supported no-money, no-fault settlements, even in cases of egregious Made in USA fraud.
First, Commissioners Phillips and Wilson argue they must have express statutory authorization to accept monetary remedies in settlements. However, less than two months after the Supreme Court ruled that the FTC cannot obtain monetary relief in certain federal court actions, both Commissioners Phillips and Wilson voted for an $18 million order to settle a complaint brought under Section 13(b) of the FTC Act—the exact authority the Supreme Court explicitly ruled against the FTC on.
To further disguise the nature of their opposition, Commissioners Phillips and Wilson assert that the Commission is accepting monetary remedies in an administrative settlement not permitted by Section 19 of the Federal Trade Commission Act. In reality, Section 19 of the FTC Act expressly authorizes the payment of redress and damages. Consequential damages in Made in USA fraud can be considerable, particularly when it comes to harms to law-abiding businesses whose sales were siphoned. In settlements, parties can save time and resources by making the best estimates—adjusted for risk—on the right resolution. It would have been costly to specifically identify each harmed consumer and business, but it is clear the proposed monetary relief is reasonable, given our legal authority.
In addition, Commissioners Phillips and Wilson imply that to obtain the proposed remedies, the Commission must file multiple complaints in our administrative tribunal and in federal court. However, Commissioner Phillips and Wilson know that the Commission does not regularly prosecute the same conduct in multiple fora. Commissioners need not concurrently charge an entity for the same consumer protection violation of law in its administrative tribunal and in federal court, even when it may be authorized, like in civil penalty actions under Section 5(l).
The facts and evidence clearly show that DreamCloud violated an administrative order, triggering penalties and a broad range of relief under Section 5(l) of the FTC Act. Even if Section 19 of the FTC Act did not authorize damages, it is perfectly appropriate for the Commission to settle all of these claims at once, rather than pursue an additional action for civil penalties. It is obvious that today's proposed action is legally sound. If Commissioners Phillips and Wilson are voting against the proposed settlement because of their preference for no-consequences settlements in Made in USA fraud matters, then they should be upfront with the public and state so plainly.
The FTC has a troubling history of strong-arming small and independent business owners—including church organists
Finally, for decades, there was a bipartisan consensus among FTC Commissioners that Made in USA fraud should not be penalized. In 1994, Congress granted the FTC strong tools to combat Made in USA fraud, but Commissioners essentially ignored them. Fortunately, that era is also over.
Effective August 13, 2021, individuals and companies engaging in Made in USA fraud, including first-time offenders, will be subject to stricter sanctions under the FTC's Made in USA Labeling Rule. I hope my colleagues will fully support enforcement actions to hold bad actors accountable under this rule. The families and honest businesses—long ignored by past Commissioners—are counting on us to live up to the law.
That didn't take long. Soon after the Supreme Court unanimously rebuked the Federal Trade Commission for seeking monetary remedies not permitted by Section 13(b) of the FTC Act
We commend staff for their diligent work on this case, and remain committed to continued Made in the U.S.A. enforcement.
In 2018, the Commission entered an administrative order against Nectar Brand LLC, also d/b/a Nectar Sleep, DreamCloud LLC, and DreamCloud Brand LLC (“Nectar Order”) and its successors and assigns for making “Assembled in USA” claims for wholly-imported mattresses. Despite being under order, over at least two periods between December 2018 and June 2020, the Complaint alleges that Nectar deceptively advertised DreamCloud mattresses as “proudly made with 100% USA-made premium quality materials”.
Since entry of the Nectar Order, the 2018 Respondent underwent several changes to its corporate structure. In 2019, Resident Home LLC was created as the parent company of Nectar Brand LLC and DreamCloud Brand LLC. We do not have reason to believe that Resident Home LLC is a successor or assign of Nectar Brand LLC and is covered by the Nectar Order.
This state of play left the Commission with at least two choices. It could choose to pursue an order enforcement action in federal court and seek civil penalties.
The Commission statement and Commissioner Chopra's separate statement assert that evidence clearly showed that DreamCloud violated an administrative order. Despite the majority's paean to the value of vindicating Commission orders, we do not plead an order violation in the complaint. We support the FTC's longstanding view that order obligations should reflect pleadings.
In choosing to proceed only administratively, the Commission gave up its ability to obtain civil penalties; but it can still seek redress on behalf of injured consumers pursuant to Section 19 of the FTC Act. While the process is somewhat convoluted, Section 19 permits the Commission to secure certain monetary relief, including,
Despite these clear limitations, the Commission's proposed order includes monetary redress of $753,300, with any remainder not used for redress to be disgorged to the Treasury. The complaint does not include details that would help the public understand how the Commission arrived at this amount, and we are not at liberty to reveal non-public information. But our view of the facts is that the figure obtained far exceeds any injury suffered by those consumers who saw the deceptive statement and purchased a DreamCloud mattress or any reasonable estimate of damages. The majority points to language in Section 19 that also authorizes redress of injury to “other persons” (besides consumers) resulting from the unlawful practices alleged.
The Supreme Court handed down its decision in
The
If the goal in this case were to maximize money paid by the Respondents as punishment and to deter others from engaging in similar conduct, the Commission was free to enforce the original Nectar Order and seek civil penalties. That was the road not taken. In choosing this road, with a new and broader order, the Commission is obligated to limit monetary relief to the amount necessary to redress injury, as explicitly authorized by Section 19. Because this settlement exceeds those clearly delineated bounds, we must respectfully dissent.
Office of the Assistant Secretary for Health, Office of the Secretary, U. S. Department of Health and Human Services.
Notice.
The Office of the Assistant Secretary for Health (OASH) is seeking nominations for membership on the Presidential Advisory Council on HIV/AIDS (referred to as PACHA and/or the Council). The PACHA is a federal advisory committee within the U.S. Department of Health and Human Services (HHS). Management support for the activities of this Council is the responsibility of the OASH. The qualified individuals will be nominated to the Secretary of Health and Human Services for consideration for appointment as members of the PACHA. Members of the Council, including the Chair and or Co-Chairs, are appointed by the Secretary. Members are invited to serve on the Council for up to four-year terms. The Council was established to provide advice, information, and recommendations to the Secretary regarding programs and policies intended to promote effective prevention and care of HIV infection and AIDS. The functions of the Council are solely advisory in nature.
Nominations for membership on the PACHA must be received no later than 8:00 p.m. (ET) Monday, January 3, 2022. Packages received after this time will not be considered for the current membership cycle.
All nominations should be electronically mailed in one email to
Ms. Caroline Talev, Management Analyst and Alternate Designated Federal Officer to PACHA; email
PACHA was established by Executive Order 12963, dated June 14, 1995 as amended by Executive Order 13009, dated June 14, 1996. The Council was established to provide advice, information, and recommendations to the Secretary regarding programs and policies intended to promote effective prevention of HIV disease and AIDS. The functions of the Council are solely advisory in nature.
The Council consists of not more than 25 members. Council members are selected from prominent community leaders with particular expertise in, or knowledge of, matters concerning HIV and AIDS, public health, global health, population health, faith, philanthropy, marketing or business, as well as other national leaders held in high esteem from other sectors of society. PACHA selections will also include persons with lived HIV experience and racial/ethnic and sexual and gender minority persons disproportionately affected by HIV. Council members are appointed by the Secretary or designee, in consultation with the White House Office on National AIDS Policy. Pursuant to advance written agreement, Council members shall receive no stipend for the advisory service they render as members of PACHA. However, as authorized by law and in accordance with Federal travel regulations, PACHA members may receive per diem and reimbursement for travel expenses incurred in relation to performing duties for the Council.
This announcement is to solicit nominations of qualified candidates to fill current and upcoming vacancies on the PACHA.
Nominations are being sought for individuals who have expertise and qualifications necessary to contribute to the accomplishments of PACHA's objectives. Federal employees will not be considered for membership. The U.S. Department of Health and Human Services policy stipulates that committee membership be balanced in terms of points of view represented, and the committee's function. Appointments shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, gender identity, HIV status, disability, and cultural, religious, or socioeconomic status. Nominees must be U.S. citizens, and cannot be full-time employees of the U.S. Government. Committee members are Special Government Employees (SGEs), requiring the filing of financial disclosure reports at the beginning and annually during their terms. Individuals who are selected for appointment will be required to provide detailed information regarding their financial interests. Note that the need for different expertise varies from year to year and a candidate who is not selected for an open position may be reconsidered for a subsequent open position. SGE nominees must be U.S. citizens, and cannot be full-time employees of the U.S. Government. Candidates should submit the following items to be considered of appointment:
• Current curriculum vitae or resume, including complete contact information (telephone numbers, mailing address, email address).
• A biographical sketch of the nominee (500 words or fewer).
• A letter of interest or personal statement from the nominee stating how their expertise would inform the work of PACHA.
• At least one letter of recommendation from person(s) not employed by the U.S. Department of Health and Human Services.
Individuals can nominate themselves for consideration of appointment to the Council. All nominations must include the required information in
The Department is legally required to ensure that the membership of HHS Federal advisory committees is fairly balanced in terms of points of view represented and the functions to be performed by the advisory committee. Appointment to the Council shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, disability, and cultural, religious, or socioeconomic status. The Standards of Ethical Conduct for Employees of the Executive Branch are applicable to individuals
Office of the Secretary, Health and Human Service, HHS.
Notice.
In compliance with the requirement of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment.
Comments on the ICR must be received on or before November 22, 2021.
Submit your comments to
Sherrette Funn,
Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
The 21st Century Cures Act (Cures Act) requires HHS and ONC to improve the interoperability of health information. ONC's Cures Act final rule identifies important data elements that should be made electronically available and exchanged through the use of health information technology (IT).
In support of these efforts, ONC seeks to better understand patients' and health care providers' knowledge of SDOH, how SDOH data are currently documented in the electronic health record and how this information is used in patient care. Additionally, ONC seeks to understand challenges experienced and preferences for SDOH data collection, sharing and utilization from both the provider and patient perspectives.
A series of 20 focus groups, a mix of asynchronous (discussion board) and synchronous (live), will be conducted among groups of healthcare professionals (10 groups) and patients/care partners (10 groups), representing various backgrounds, demographics, and healthcare professions, to learn more about their experiences and thoughts relating to the capture and utilization of SDOH data. A prescreening questionnaire will be sent to 1,500 individuals and 200 of those 1,500 people will be chosen to participate in the focus groups. Each individual will participate in one 90-minute focus group.
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.
Notice is hereby given of a change in the meeting of the Prokaryotic Cell and Molecular Biology Study Section, November 3, 2021, 10:00 a.m. to November 4, 2021, 7:00 p.m., National Institutes of Health, Rockledge II, 6701 Rockledge Drive, Bethesda, MD, 20892 which was published in the
This notice is being amended to change the meeting date from November 3-4, 2021 to November 3, 2021. The meeting time and place remains the same. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
National Institutes of Health, HHS.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Peter Tung at 240-669-5483 or
Technology description follows.
The invention provides immunogen polypeptides comprising fragments of VAR2CSA protein expressed by
The VAR2CSA immunogens bind to oncofetal CSA, a putative therapeutic target for multiple cancers, including NSCLC, breast, bladder and 40-50% of all pediatric solid tumors. Oncofetal CSA is only expressed solely in the placenta, except in several cancerous tissues, making it an ideal target for targeted therapeutics such as immunogens that are cross linked to cytotoxic agents.
This technology is available for licensing for commercial development in accordance with 35 U.S.C. 209 and 37 CFR part 404, as well as for further development and evaluation under a research collaboration.
• Immunogens successfully tested in a small animal model
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. 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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. 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
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Office of the Secretary, Department of Homeland Security.
Correction notice.
This notice announces the appointment of members of the Senior Executive Service (SES) Performance Review Boards (PRBs) for the Department of Homeland Security (DHS). The purpose of the PRBs is to make recommendations to the appointing authority (
This Notice is effective as of October 21, 2021.
Greg Ruocco, Director, Executive Resources, Office of the Chief Human Capital Officer,
In accordance with 5 U.S.C. 4314(c) and 5 CFR 430.311, each agency must establish one or more PRBs to make recommendations to the appointing authority (
Office of Inspector General, U.S. Department of Homeland Security.
Notice of a modified Privacy Act system of records.
In accordance with the Privacy Act of 1974, the U.S. Department of Homeland Security (DHS), Office of Inspector General (OIG), proposes to modify and reissue a current DHS system of records titled, “DHS/OIG-002 Investigative Records System of Records.” This system of records allows DHS OIG to collect and maintain records related to alleged violations of criminal, civil, and administrative laws and regulations pertaining to DHS programs, operations, and employees, as well as contractors and other individuals and entities associated with DHS; monitor complaint and investigation assignments, status, disposition, and results; manage investigations and information provided during the course of such investigations; audit actions taken by DHS management regarding employee misconduct and other allegations; audit legal actions taken following referrals to the U.S. Department of Justice (DOJ) for criminal prosecution or litigation; provide information relating to any adverse action or other proceeding that may occur as a result of the findings of an investigation; and provide a system for calculating and reporting statistical information. DHS OIG is updating this system of records notice to provide notice of changes to the Authorities, Categories of Records, Record Source Categories, and Routine Uses. Additionally, DHS is issuing an updated Notice of Proposed Rulemaking to exempt this system of records from certain provisions of the Privacy Act, elsewhere in the
Submit comments on or before November 22, 2021. This modified system will be effective upon publication. New or modified routine uses will be effective November 22, 2021.
You may submit comments, identified by docket number DHS-2021-0041 by one of the following methods:
•
•
•
For general and privacy questions, please contact: Lynn Parker Dupree, (202) 343-1717, Chief Privacy Officer, U.S. Department of Homeland Security, Washington, DC 20528-0655.
The U.S. Department of Homeland Security (DHS), Office of Inspector General (OIG), is modifying and reissuing this system of records notice under the Privacy Act of 1974 (5 U.S.C. 552). DHS OIG is responsible for a wide range of oversight functions, including to initiate, conduct, supervise, and coordinate audits, investigations, inspections, and other reviews relating to the programs and operations of DHS. DHS OIG promotes economy, efficiency, and effectiveness within DHS and prevents, detects, and investigates employee corruption, fraud, waste, and abuse in its programs and operations. DHS OIG is responsible for investigating allegations of criminal, civil, and administrative misconduct involving DHS employees, contractors, grantees, and DHS programs and activities. These investigations can result in criminal prosecutions, fines, civil monetary penalties, and administrative sanctions. While DHS OIG is operationally a part of DHS, it operates independently of DHS and all offices within it.
The DHS/OIG-002 Investigative Records System of Records assists DHS OIG with receiving and processing allegations of misconduct, including violations of criminal and civil laws, as well as administrative policies and regulations pertaining to DHS employees, contractors, grantees, and other individuals and entities within DHS. The system includes complaints and investigation-related files. DHS OIG manages information provided during the course of its investigations to: Create records showing dispositions of allegations; audit actions taken by DHS management regarding employee misconduct; audit legal actions taken following referrals to the U.S. Department of Justice (DOJ) for criminal prosecution or civil action; calculate and report statistical information; manage OIG investigators' training; and manage Government-issued investigative property and other resources used for investigative activities.
DHS OIG is modifying the DHS/OIG-002 Investigative Records System of Records to update the Authorities, Categories of Records, Record Source Categories, and Routine Uses. The Authorities section is being updated to provide more precise statutes for collection: 6 U.S.C. 113(b); 6 U.S.C. 795; 6 U.S.C. 142; 6 U.S.C. 345; and the Inspector General Act of 1978, as amended 5 U.S.C. App. §§ 1-13. The Categories of Records are being updated to include: (1) Information obtained from social media; (2) video and photographic digital images; (3) case administrative information (
The Record Source Categories has been updated to clarify that records may be obtained from a variety of sources, to include: Subjects, witnesses and others associated with investigations; other DHS Components and Federal, state, local, nongovernmental and foreign agencies; educational institutions; credit bureaus; medical service providers; financial institutions; commercial
Routine use (E) is being modified and a new routine use (F) is being added to conform to Office of Management and Budget Memorandum M-17-12. Routine use (P) was added to describe sharing required when testing new technologies, under the approval of the Chief Privacy Officer. In addition, a redundant routine use has been removed. All subsequent routine uses have been renumbered to account for these changes. Additionally, this notice includes non-substantive changes to simplify the formatting and text of the previously published notice.
Consistent with DHS's information sharing mission, information stored in the DHS/OIG-002 Investigative Records System of Records may be shared with other DHS Components that have a need to know the information to carry out their national security, law enforcement, immigration, intelligence, or other homeland security functions. In addition, DHS OIG may share information with appropriate federal, state, local, tribal, territorial, foreign, or international government agencies consistent with the routine uses set forth in this system of records notice.
There will be no change to the Privacy Act exemptions currently in place for this system of records and therefore they remain in effect. This modified system will be included in DHS's inventory of record systems.
The Privacy Act codifies fair information practice principles in a statutory framework governing the means by which Federal Government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. Additionally, the Judicial Redress Act (JRA) provides covered persons with a statutory right to make requests for access and amendment to covered records, as defined by the JRA, along with judicial review for denials of such requests. In addition, the JRA prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act.
Below is the description of the DHS/OIG-002 Investigative Records System of Records. In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
U.S. Department of Homeland Security (DHS)/Office of Inspector General (OIG)-002 Investigative Records System of Records.
Classified, sensitive, unclassified.
Records are maintained at the DHS OIG Headquarters in Washington, DC and field offices. Generally, OIG maintains electronic records in the OIG Enterprise Data System (EDS).
Chief System Security Officer, U.S. Department of Homeland Security, Office of Inspector General, Washington, DC 20528.
6 U.S.C. 113(b); 6 U.S.C. 795; 6 U.S.C. 142; 6 U.S.C. 345; and the Inspector General Act of 1978, as amended 5 U.S.C. App. §§ 1-13.
The purpose of this system is to collect and maintain records concerning DHS OIG investigations, including allegations of misconduct, violations of criminal, civil, and administrative laws and regulations pertaining to DHS programs, operations, employees, contractors, and other individuals or entities associated with DHS. This system of records is intended to support and protect the integrity of DHS OIG operations; to ensure compliance with applicable laws, regulations, and policies; and to ensure the integrity of DHS employees' conduct and those acting on behalf of DHS.
Any individual filing complaints of or related to criminal, civil, or administrative violations, including employee misconduct, fraud, waste, or mismanagement; current or former DHS employees and contractors; current or former employees of other federal agencies; contractor applicants; contractors, grantees, and individuals whose association with current and former employees relate to alleged violations under investigation; witnesses, complainants, sources of information, suspects, defendants, or parties who have been identified by DHS OIG, other DHS Components, other agencies, or members of the general public in connection with complaints, audits, inspections, and/or investigations.
Categories of records in this system include:
• Full name and aliases;
• Date of birth;
• Social Security number;
• Citizenship status;
• Driver's license, state ID, passport, or other government-issued credential information;
• Demographic information (
• Addresses;
• Contact information (
• Employment information (
• Relevant information from background investigations;
• Education/training history;
• Medical history;
• Criminal history;
• Travel history, including passport information;
• Financial history;
• Relevant information from inspections, reviews, and inquiries, including records collected in response to an allegation, such as;
○ Government emails;
○ Time and attendance records;
○ Government credit card bills;
○ Building access logs;
○ Government phone bills/records;
○ Government property records;
○ Government travel records;
○ Computer forensic files;
○ Open source or publicly available information, such as social media postings;
○ Police reports; and
○ Any other information gathered in the course of or relating to an integrity or disciplinary inquiry, review, inspection, or investigation of a criminal, civil, or administrative nature;
• Investigative records of a criminal, civil, or administrative nature;
• Biometrics;
• Letters, emails, memoranda, video, photograph and digital images, and reports;
• Exhibits, evidence, statements, and affidavits;
• Relatives and associates;
• Allegations received and method received;
• Incident location/date;
• Case reference numbers;
• Case status;
• Case agent/officer or supervisor;
• Any other personal information relevant to the subject matter of an OIG investigation; and
• Investigative case files containing allegations and complaints; witness statements; transcripts of electronic monitoring; subpoenas and legal opinions and advice; reports of investigations (ROI); and reports of criminal, civil, and administrative actions taken as a result of the investigation.
Records are obtained from individuals who are the subject of the investigation or inquiry, employers, law enforcement organizations, detention facilities, members of the public, witnesses, educational institutions, government agencies, nongovernmental organizations, credit bureaus, references, neighborhood checks, confidential sources, medical service providers, personal interviews, photographic images, military records, financial institutions, free and for-purchase commercial records, open source or publicly available information, citizenship records, and the personnel history and application forms of agency applicants, employees, or contractors. Records are also collected from other DHS Components.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including the U.S. Attorneys Offices, or other federal agencies conducting litigation or proceedings before any court, adjudicative, or administrative body, when it is relevant or necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any Component thereof;
2. Any employee or former employee of DHS in his/her official capacity;
3. Any employee or former employee of DHS in his/her individual capacity, when DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration (NARA) or General Services Administration pursuant to records management inspections being conducted under the authority of 44 U.S.C. secs. 2904 and 2906.
D. To an agency or organization for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when (1) DHS suspects or has confirmed that there has been a breach of the system of records; (2) DHS has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, DHS (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
F. To another federal agency or federal entity, when DHS determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, when a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
I. To a federal, state, or local agency, or other appropriate entity or individual, or through established liaison channels to selected foreign governments, in order to provide intelligence, counterintelligence, or antiterrorism activities authorized by U.S. law, Executive Order, or other applicable national security directive when the security of the borders which DHS is tasked with maintaining are at risk of being compromised.
J. To international and foreign governmental authorities in accordance with law and formal or informal international agreements.
K. To an appropriate federal, state, local, tribal, foreign, or international agency, pursuant to a request, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual or issues of a security clearance, license, contract, grant, or other benefit, or if the information is relevant and necessary to a DHS decision concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit and when disclosure is appropriate to the proper performance of the official duties of the person making the request.
L. To third parties during the course of a law enforcement investigation to the extent necessary to obtain information pertinent to the investigation, provided disclosure is appropriate to the proper performance of the official duties of the officer making the disclosure.
M. To the Council of the Inspectors General on Integrity and Efficiency (CIGIE) and other federal agencies, as necessary, if the records respond to an audit, investigation, or review conducted pursuant to an authorizing law, rule, or regulation, and in particular those conducted at the request of the CIGIE's Integrity Committee pursuant to statute.
N. To complainants and victims to the extent necessary to provide such persons with information and explanations concerning the progress or results of the investigation arising from the matters of which they complained or of which they were a victim.
O. To appropriate federal, state, local, tribal, or foreign governmental agencies or multilateral governmental organizations, with the approval of the Chief Privacy Officer, when DHS is aware of a need to use relevant data, that relate to the purpose(s) stated in this SORN, for purposes of testing new technology.
P. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information, when disclosure is necessary to preserve confidence in the integrity of DHS, or when disclosure is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent the Chief Privacy Officer determines that release of the specific information in the context of a particular case would constitute a clearly unwarranted invasion of personal privacy.
DHS OIG stores records in this system electronically or on paper in secure facilities in a locked drawer behind a locked door. The records may be stored on magnetic disc, tape, and digital media.
DHS OIG may retrieve records by the individual's name, date of birth, Social Security number, or any other unique identifier listed above.
Records will be retained pursuant to DHS OIG National Archives and Records Administration (NARA) retention schedule N1-563-07-5 (October 11, 2007). Complaint and investigative record files that involve substantive information relating to national security or allegations against senior DHS officials, that attract national media or congressional attention, or that result in substantive changes in DHS policies or procedures are permanent and are transferred to the NARA 20 years after completion of the investigation and all actions based thereon. All other complaint and investigative record files are destroyed 20 years after completion of the investigation and all actions based thereon. Government issued investigative property records and management reports are destroyed when no longer needed for business purposes.
DHS OIG safeguards records in this system according to applicable rules and policies, including all applicable DHS automated systems security and access policies. DHS OIG has imposed strict controls to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
The Secretary of Homeland Security has exempted this system from certain notification, access, and amendment procedures of the Privacy Act, and the Judicial Redress Act, if applicable. However, DHS will consider individual requests to determine whether or not information may be released. Thus, individuals seeking access to and notification of any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the OIG Privacy Officer and OIG Freedom of Information Act Officer, whose contact information can be found at
When an individual is seeking records about himself or herself from this system of records or any other Departmental system of records, the individual's request must conform with the Privacy Act regulations set forth in 6 CFR part 5. The individual must first verify his/her identity, meaning that the individual must provide his/her full name, current address, and date and place of birth. The individual must sign the request, and the individual's signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, an individual may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer,
• Explain why he or she believes the Department would have information being requested;
• Identify which component(s) of the Department he or she believes may have the information;
• Specify when the individual believes the records would have been created; and
• Provide any other information that will help the staff determine which DHS component agency may have responsive records;
If the request is seeking records pertaining to another living individual, the request must include an authorization from the individual whose record is being requested, authorizing the release to the requester.
Without the above information, the component(s) may not be able to conduct an effective search, and the individual's request may be denied due to lack of specificity or lack of compliance with applicable regulations.
For records covered by the Privacy Act or covered JRA records, individuals may make a request for amendment or correction of a record of the Department about the individual by writing directly to the Department component that maintains the record, unless the record is not subject to amendment or correction. The request should identify each particular record in question, state the amendment or correction desired, and state why the individual believes that the record is not accurate, relevant, timely, or complete. The individual may submit any documentation that would be helpful. If the individual believes that the same record is in more than one system of records, the request should state that and be addressed to each component that maintains a system of records containing the record.
See “Record Access Procedures” above.
The Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(j)(2), has exempted this system from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), e)(4)(I), (e)(5), (e)(8), (f); and (g)(1). Additionally, the Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5), has exempted this system from the following provisions of the Privacy Act, 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
80 FR 44372 (July 27, 2015).
U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security.
Notice.
On August 5, 2021, President Joseph Biden issued a memorandum to the Secretary of State and the Secretary of Homeland Security (Secretary) directing the Secretary to take appropriate measures to defer for 18 months, through February 5, 2023, the removal of certain Hong Kong residents present in the United States. This Notice provides information about Deferred Enforced Departure (DED) for certain eligible Hong Kong residents and provides information on how eligible individuals may apply for DED-related Employment Authorization Documents (EADs) with USCIS. For the purposes of this Notice, a Hong Kong resident is defined as an individual of any nationality, or without nationality, who has met the requirements for, and been granted, a Hong Kong Special Administrative Region Passport, a British National Overseas Passport, a British Overseas Citizen Passport, a Hong Kong Permanent Identity card, or a Hong Kong Special Administrative Region (HKSAR) Document of Identity for Visa Purposes.
DED and employment authorization for noncitizens covered under DED for Hong Kong is effective from August 5, 2021 through February 5, 2023. The procedures for employment authorization in this Notice apply only to noncitizens who are Hong Kong residents, who are present in the United States as of August 5, 2021, and who meet other eligibility criteria for DED described below.
You may contact Andria Strano, Acting Division Chief, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by mail at 5900 Capital Gateway Drive, Camp Springs, MD 20746, or by phone at 800-375-5283.
• For further information on DED, including additional information on eligibility, please visit the USCIS DED web page at
• If you have additional questions about DED, please visit
• Applicants seeking information about the status of their individual cases may check Case Status Online, available on the USCIS website at
• Further information will also be available at local USCIS offices upon publication of this Notice.
Pursuant to the President's constitutional authority to conduct the foreign relations of the United States, President Biden has concluded that foreign policy considerations warrant implementing DED for Hong Kong through February 5, 2023.
• DED is an administrative stay of removal ordered by the President. The authority to grant DED arises from the President's constitutional authority to conduct the foreign relations of the United States. The President can authorize DED for any reason related to this authority. DED has been authorized in situations where foreign nationals or other groups of noncitizens may face danger if required to return to countries or any part of such foreign countries experiencing political instability, conflict, or other unsafe conditions, or when there are other foreign policy reasons for allowing a designated group of noncitizens to remain in the United States.
• Although DED is not a specific immigration status, individuals covered by DED are not subject to removal from the United States, usually for a designated period of time. Furthermore, the President may direct that certain benefits, such as employment authorization or travel authorization, be available to the noncitizens covered by the DED directive.
• If the President provides for employment or travel authorization, USCIS administers those benefits. USCIS publishes a
• The President issues directives regarding DED and who is covered via presidential memorandum. The qualification requirements for individuals who are covered under DED are based on the terms of the President's directive regarding DED and any relevant implementing requirements established by DHS. Since DED is a directive not to remove particular individuals, rather than a specific immigration status like Temporary Protected Status (TPS), there is no DED application form required to obtain DED coverage.
The Presidential Memorandum ordering DED for Hong Kong can be found at:
The procedures for employment authorization in this Notice apply only to non-U.S. citizens who are Hong Kong residents (regardless of their country of birth), who are present in the United States as of August 5, 2021, except for noncitizens:
• Who have voluntarily returned to Hong Kong or the People's Republic of China (PRC) after August 5, 2021;
• who have not continuously resided in the United States since August 5, 2021;
• who are inadmissible under section 212(a)(3) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(a)(3)) or deportable under section 237(a)(4) of the INA (8 U.S.C. 1227(a)(4));
• who have been convicted of any felony or two or more misdemeanors committed in the United States, or who meet the criteria set forth in section 208(b)(2)(A) of the INA (8 U.S.C. 1158(b)(2)(A));
• who are subject to extradition;
• whose presence in the United States the Secretary has determined is not in the interest of the United States or presents a danger to public safety; or
• whose presence in the United States the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States.
If you are covered under DED for Hong Kong and would like to work on a DED-related EAD, you must apply for an EAD by filing an Application for Employment Authorization (Form I-765). Please carefully follow the Form I-765 instructions when completing the application for an EAD. When filing the Form I-765, you must:
• Indicate that you are eligible for DED by entering “(a)(11)” in response to Question 27 on the Form I-765; and
• Submit the fee for the Form I-765 (or request a fee waiver).
The regulations require individuals covered under DED who request an EAD to pay the fee prescribed in 8 CFR 103.7 for the Form I-765.
The filing instructions on Form I-765 list all the documents needed. You may also find information on the initial required documents on the USCIS website at
If biometrics are required to produce your EAD, you will be notified by USCIS and scheduled for an appointment at a USCIS Application Support Center.
For DED, mail your completed Form I-765 and supporting documentation to the proper address in Table 1 below.
No. Electronic filing is not available when filing Form I-765 based on DED.
This DED authorization is set to end on February 5, 2023. After that date, employers can no longer accept EADs with a category code of A11 and a February 5, 2023, expiration date, and employees will need to present other evidence of continued work authorization.
In its discretion, DHS may provide travel authorization as a benefit of DED for eligible Hong Kong residents. You must file for advance parole if you wish to travel outside the United States. Advance parole gives you permission to leave the United States and return during a specified period. To request advance parole, you must file Form I-131, Application for Travel Document, available at
• Select Item Number 1.d. in Part 2 on the Form I-131; and
• Submit the fee for the Form I-131.
If you leave the United States without first receiving advance parole, you may no longer be eligible for DED and may not be permitted to reenter the United States. Please also be advised that if you return to Hong Kong or the PRC, you may not be permitted to resume DED in the United States since the presidential memorandum providing for DED for certain Hong Kong residents excludes individuals who have voluntarily returned to Hong Kong or the PRC after August 5, 2021.
Mail your application for Form I-131 to the proper address in Table 1.
The filing instructions on Form I-131 list all the documents needed. You may also find information on the acceptable documentation and DED eligibility on the USCIS website at
To get case status information about your DED-based EAD request, you can check Case Status Online at
You can find the Lists of Acceptable Documents on the third page of Form I-9, Employment Eligibility Verification, as well as the Acceptable Documents web page at
You may present any documentation from List A (which provides evidence of both identity and employment authorization) or documentation from List B (which provides evidence of your identity) together with documentation from List C (which provides evidence of employment authorization), or where applicable you may present an acceptable receipt. Receipts may not be accepted if employment will last less than three days. Additional information on receipts is available at
Yes, if you are eligible for DED, you can obtain a new EAD, regardless of whether you have an EAD based on another immigration status. If you want to obtain a DED-based EAD valid through February 5, 2023, then you must file Form I-765 and pay the associated fee.
No. When completing Form I-9, employers must accept any documentation that appears on the Form I-9 Lists of Acceptable Documents that reasonably appears to be genuine and that relates to you, or an acceptable List A, List B, or List C receipt. Employers need not reverify List B identity documents. Therefore, employers may not request proof of Hong Kong residency when completing Form I-9 for new hires or reverifying the employment authorization of current employees. Refer to the “Note to Employees” section of this
Employers are reminded that the laws requiring proper employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This
For general questions about the employment eligibility verification process, employees may call USCIS at 888-897-7781 (TTY 877-875-6028) or email USCIS at
To comply with the law, employers must accept any document or combination of documents from the Lists of Acceptable Documents if the documentation reasonably appears to be genuine and to relate to the employee, or an acceptable List A, List B, or List C receipt. Employers may not require extra or additional documentation beyond what is required for Form I-9 completion. Further, employers participating in E-Verify who receive an E-Verify case result of Tentative Non-confirmation (TNC) must promptly inform employees of the TNC and give such employees an opportunity to contest the TNC. A TNC case result means that the information entered into E-Verify from Form I-9 differs from records available to DHS.
Employers may not terminate, suspend, delay training, withhold or lower pay, or take any adverse action against an employee because of the TNC while the case is still pending with E-Verify. A Final Non-confirmation (FNC) case result is received when E-Verify cannot confirm an employee's employment eligibility. An employer may terminate employment based on a case result of FNC. Work-authorized employees who receive an FNC may call USCIS for assistance at 888-897-7781 (TTY 877-875-6028). For more information about E-Verify-related discrimination or to report an employer for discrimination in the E-Verify process based on citizenship, immigration status, or national origin, contact IER's Worker Hotline at 800-255-7688 (TTY 800-237-2515). Additional information about proper nondiscriminatory Form I-9 and E-Verify procedures is available on the IER website at
For Federal purposes, individuals may present their A11 EAD to show they are covered by DED. However, while Federal Government agencies must follow the guidelines laid out by the Federal Government, state and local government agencies establish their own rules and guidelines when granting certain benefits. Each state may have different laws, requirements, and determinations about what documents you need to provide to prove eligibility for certain benefits. Whether you are applying for a Federal, state, or local government benefit, you may need to provide the government agency your A11 EAD or other DHS-issued documentation showing you are covered
Some benefit-granting agencies use the Systematic Alien Verification for Entitlements (SAVE) program to confirm the current immigration status of applicants for public benefits. SAVE can verify when an individual has DED based on the documentation above. In most cases, SAVE provides an automated electronic response to benefit-granting agencies within seconds, but occasionally verification can be delayed. You can check the status of your SAVE verification by using CaseCheck at
Inter-American Foundation.
Notice and request for comment.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Inter-American Foundation (IAF), will submit to the Office of Management and Budget (OMB) a solicitation to conduct automated outreach to IAF Indigenous grantees and Tribal Nations in the United States. The solicitation explains the IAF's reasoning for this request and describes the type of information the agency seeks, along with calculations of possible related costs and burdens to potential participants.
Natalia Mandrus Associate General Counsel, (202) 688-3054 or via email to
Written comments must be submitted to the office listed in the address section below within 30 days from the date of this publication in the
Bureau of Land Management, Interior.
Notice of application.
The United States Department of Agriculture, Forest Service (USFS) has filed an application with the Bureau of Land Management (BLM) requesting the Secretary of the Interior to withdraw, for a 20-year term, approximately 225,378 acres of National Forest System lands in the Rainy River Watershed on the Superior National Forest in northeastern Minnesota, from disposition under the United States mineral and geothermal leasing laws, subject to valid existing rights. This notice segregates the lands for up to two years from operation of the United States mineral and geothermal leasing laws, subject to valid existing rights; provides an opportunity for the public to submit written comments on the withdrawal application; and notifies the public that one or more public meetings will be held regarding the application.
Comments regarding this withdrawal application must be received by January 19, 2022. A notice for public meeting(s) regarding the withdrawal application will be announced separately in the
Comments regarding this withdrawal proposal should be sent to
F. David Radford, BLM Eastern States Office, telephone: 703-558-7759, email:
A map and other information related to the withdrawal application are available at the USFS Superior National Forest, 8901 Grand Avenue Place, Duluth, Minnesota 55808.
The USFS has filed an application with the BLM requesting the Secretary of the Interior to withdraw all federal lands and interests in lands (excluding lands with federally owned fractional mineral interests) situated within the exterior boundaries of the area depicted on the map submitted with the application, entitled Appendix B: Superior National Forest, dated September 20, 2021, from disposition under the United States mineral and geothermal leasing laws for a period of 20 years, subject to valid existing rights. The above-referenced map is available from BLM or USFS by sending a request to the physical address in the
All the National Forest System lands identified in the townships below and any lands acquired by the Federal government within the exterior boundaries shown on the above referenced map are included in the withdrawal application. This area excludes the BWCAW and the MPA, as depicted on the above referenced map.
The areas described contain approximately 225,378 acres of National Forest System lands in Cook, Lake, and Saint Louis Counties.
Non-Federal lands within the area proposed for withdrawal total approximately 223,000 acres in Cook, Lake, and Saint Louis Counties. As non-Federal lands, these parcels would not be affected by the temporary segregation or proposed withdrawal, unless they are subsequently acquired by the Federal government.
Congress designated the BWCAW and established the MPA to protect and preserve the ecological richness of the lakes, waterways, and forested wilderness along the Canadian border. The protection of the Rainy River Watershed would help the preservation of the BWCAW and MPA, as well as Canada's Quetico Provincial Park, which are all interconnected through the unique hydrology in the region.
The use of a right-of-way, interagency agreement, or cooperative agreement would not meet the purpose of this proposed withdrawal because such an action would not adequately constrain mineral and geothermal leasing to provide adequate protection throughout this pristine natural area.
No alternative sites are feasible as the lands subject to the withdrawal application are the lands for which protection is sought from the impacts of potential future exploration and development under the United States mineral and geothermal leasing laws. No water will be needed to fulfill the purpose of the requested withdrawal.
The USFS will serve as the lead agency for analyzing the impacts of the proposed withdrawal under the National Environmental Policy Act. The USFS will designate the BLM as a cooperating agency. The BLM will independently evaluate and review the draft and final analysis and any other documents needed for the Secretary of the Interior to make a decision on the proposed withdrawal.
Records related to the withdrawal application may be examined by contacting the individual listed in the
For a period until January 19, 2022, all persons who wish to submit comments, suggestions, or objections related to the withdrawal application may present their views in writing to the BLM Deputy State Director of Geospatial Services at the BLM Eastern States Office address or the email listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Notice is hereby given that a public meeting in connection with the application for withdrawal will be scheduled within the 90-day comment period. The BLM will publish a notice of the time and place in the
For a period until October 23, 2023, subject to valid existing rights, the National Forest System lands described in this notice will be temporarily segregated from operation of the United States mineral and geothermal leasing laws, unless the application is denied or canceled, or the withdrawal is approved prior to that date. All other activities currently consistent with the Superior National Forest Land and Resource Management Plan are not restricted by this segregation, including public recreation, mineral materials sales, and other activities compatible with preservation of the character of the area, subject to USFS discretionary approval.
The application will be processed in accordance with the regulations set forth in 43 CFR part 2300.
Bureau of Land Management, Department of Interior.
Notice of segregation.
Through this notice the Bureau of Land Management (BLM) is segregating public lands included in the right-of-way application for the Copper Rays Solar Project, from appropriation under the public land laws, including the Mining Law, but not the Mineral Leasing or Material Sales Acts, for a period of 2 years from the date of publication of this notice, subject to valid existing rights. This segregation is to allow for the orderly administration of the public lands to facilitate consideration of development of renewable energy resources. The public lands segregated by this notice total 5,518.18 acres.
This segregation for the lands identified in this notice is effective on October 21, 2021.
For further information and/or to have your name added to the mailing list, send requests to: Beth Ransel, Southern Nevada District Energy & Infrastructure Team, at telephone (702) 515-5284; address 4701 North Torrey Pines Drive, Las Vegas, NV 89130-2301; or email
Regulations found at 43 CFR 2091.3-1(e) and 2804.25(f) allow the BLM to temporarily segregate public lands within a right-of-way application area for solar energy development from the operation of the public land laws, including the Mining Law, by publication of a
The area described contains 5,518.18 acres, according to the official plats of the surveys of the lands on file with the BLM.
As provided in the regulations, the segregation of lands in this notice will not exceed 2 years from the date of publication unless extended for an additional 2 years through publication of a new notice in the
Upon termination of the segregation of these lands, all lands subject to this segregation would automatically reopen to appropriation under the public land laws, including the mining laws.
On the basis of the record
The Commission instituted the reviews on April 1, 2021 (86 FR 17200) and determined on July 7, 2021 that it would conduct expedited reviews (86 FR 51377, September 15, 2021).
The Commission made these determinations pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)). It completed and filed its determinations in the reviews on October 18, 2021. The views of the Commission are contained in USITC Publication 5233 (October 2021), entitled
By order of the Commission.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-Day notice.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Department of Justice (DOJ) will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for an additional 30 days until November 22, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, Mail Stop 3E.405A, Washington, DC 20530.
In accordance with the Trade Act of 1974 (19 U.S.C. 2271,
This notice includes instituted initial investigations following the receipt of validly filed petitions. Furthermore, if applicable, this notice includes investigations to reconsider negative initial determinations or terminated initial investigations following the receipt of a valid application for reconsideration.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. Any persons showing a substantial interest in the subject matter of the investigations may request a public hearing provided such request is filed in writing with the Administrator, Office of Trade Adjustment Assistance, at the address shown below, no later than ten days after publication in
The following are initial investigations commenced following the receipt of a properly filed petition.
A record of these investigations and petitions filed are available, subject to redaction, on the Department's website
In accordance with Sections 223 and 284 (19 U.S.C. 2273 and 2395) of the Trade Act of 1974 (19 U.S.C. 2271,
This notice includes summaries of initial determinations such as Affirmative Determinations of Eligibility, Negative Determinations of Eligibility, and Determinations Terminating Investigations of Eligibility within the period. If issued in the period, this notice also includes summaries of post-initial determinations that modify or amend initial determinations such as Affirmative Determinations Regarding Applications for Reconsideration, Negative Determinations Regarding Applications for Reconsideration, Revised Certifications of Eligibility, Revised Determinations on Reconsideration, Negative Determinations on Reconsideration, Revised Determinations on remand from the Court of International Trade, and Negative Determinations on remand from the Court of International Trade.
The following certifications have been issued.
The following investigations revealed that the eligibility criteria for TAA have not been met for the reason(s) specified.
The following investigations were terminated for the reason(s) specified.
The following revised certifications of eligibility to apply for TAA have been issued.
The following revised determinations on reconsideration, certifying eligibility to apply for TAA, have been issued.
The following negative determinations on reconsideration have been issued because the eligibility criteria for TAA have not been met for the reason(s) specified.
I hereby certify that the aforementioned determinations were issued during the period of
Millennium Challenge Corporation.
Notice.
In accordance with the requirements of the Federal Advisory Committee Act, the Millennium Challenge Corporation (MCC) Advisory Council was established as a discretionary advisory committee on July 14, 2016. Its charter was renewed for a second term on July 11, 2018 and third term on July 8, 2020. The MCC Advisory Council serves MCC solely in an advisory capacity and provides insight regarding innovations in infrastructure, technology, and sustainability; perceived risks and opportunities in MCC partner countries; new financing mechanisms for developing country contexts; and shared value approaches. The MCC Advisory Council provides a platform for systematic engagement with the private sector and other external stakeholders and contributes to MCC's mission—to reduce poverty through sustainable, economic growth.
Friday, November 5, 2021, from 9:30 a.m.-11:30 a.m. EDT.
The meeting will be held via conference call.
Beth Roberts, 202.521.2687,
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Earth Science Advisory Committee (ESAC). This Committee functions in an advisory capacity to the Director, Earth Science Division, in the NASA Science Mission Directorate. The meeting will be held for the purpose of soliciting, from the science community and other persons, scientific and technical information relevant to program planning.
Thursday, November 4, 2021, 1:00 p.m.-2:00 p.m., Eastern Time.
KarShelia Kinard, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-2355 or
This meeting will be open to the public telephonically and by WebEx. You must use a touch-tone phone to participate in this meeting. Any interested person may dial the USA US toll free number 1-888-989-3483 or toll number 1-517-308-9111, passcode: 9775739, to participate in this meeting by telephone. The WebEx link is
The agenda for the meeting includes the following topic:
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Science Committee of the NASA Advisory Council (NAC). This Committee reports to the NAC. The meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Tuesday, November 9, 2021, 1:00 p.m.-5:00 p.m.; and Wednesday, November 10, 2021, 1:00 p.m.-5:00 p.m., Eastern Time.
Ms. KarShelia Kinard, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-2355 or
This meeting will be open to the public via Webex and telephonically. Webex connectivity information for each day is provided below. For audio, when you join the Webex event, you may use your computer or provide your phone number to receive a call back, otherwise, call the U.S. toll conference number listed for each day.
On Tuesday, November 9, the event address for attendees is:
On Wednesday, November 10, the event address for attendees is:
It is imperative that the meeting be held on these dates due to the scheduling priorities of the key participants.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Planetary Science Advisory Committee. The meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Monday, November 15, 2021, 10:00 a.m. to 6:00 p.m., Eastern Time; and Tuesday, November 16, 2021, 10:00 a.m. to 6:00 p.m., Eastern Time.
Virtual meeting via WebEx and dial-in teleconference only.
Ms. Karshelia Kinard, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-2355 or
As noted above, this meeting will be available to the public telephonically and by WebEx only. For Monday, November 15, 2021, the meeting event address for attendees is:
The agenda for the meeting includes the following topics:
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants.
Each Wednesday of every month through Fiscal Year 2022 at 2:00 p.m. Changes in date and time will be posted at
During the pandemic, meetings will be held via video conferencing technology. If Board meetings resume in person, the Board will meet in the Board Agenda Room, No. 5065, 1015 Half St. SE, Washington, DC. Any in-person meetings will be noted at
Closed.
Pursuant to § 102.139(a) of the Board's Rules and Regulations, the Board or a panel thereof will consider “the issuance of a subpoena, the Board's participation in a civil action or proceeding or an arbitration, or the initiation, conduct, or disposition . . . of particular representation or unfair labor practice proceedings under section 8, 9, or 10 of the [National Labor Relations] Act, or any court proceedings collateral or ancillary thereto.” See also 5 U.S.C. 552b(c)(10).
Roxanne L. Rothschild, Executive Secretary, 1015 Half Street SE, Washington, DC 20570. Telephone: (202) 273-1940.
Submitted by
The NSF management officials having responsibility for the advisory committee listed below have determined that renewing this committee for another two years is necessary and in the public interest in connection with the performance of duties imposed upon the Director, National Science Foundation (NSF), by 42 U.S.C. 1861
Effective date for renewal is October 18, 2021. For more information, please contact Crystal Robinson, NSF, at (703) 292-8687.
Nuclear Regulatory Commission.
License amendment application; opportunity to comment, request a hearing, and petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of amendments to Facility Operating License Nos. DPR-42 and DPR-60, issued to Northern States Power Company, for operation of the Prairie Island Nuclear Generating Plant, Units 1 and 2. The proposed amendments would allow a one-time extension of the allowed outage time for the motor-driven cooling pump (MDCP) as a contingency for planned maintenance on the cooling water (CL) system.
Submit comments by November 22, 2021. Request for a hearing or petitions for leave to intervene must be filed by December 20, 2021.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal Rulemaking website:
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Robert Kuntz, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-3733, email:
Please refer to Docket ID NRC-2021-0192 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
•
•
•
The NRC encourages electronic comment submission through the Federal Rulemaking website (
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The NRC is considering issuance of amendments to Facility Operating License Nos. DPR-42 and DPR-60, issued to Northern States Power Company, for operation of the Prairie Island Nuclear Generating Plant, Units 1 and 2, located in Goodhue County, Minnesota.
The proposed amendments would allow a one-time extension of the allowed outage time for the MDCP as a contingency for planned maintenance on the CL system.
Before any issuance of the proposed license amendments, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and NRC's regulations.
The NRC has made a proposed determination that the license amendment requests involve no
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The CL system is not an initiator of any accident previously evaluated. As a result, the probability of an accident previously evaluated is not increased by the allowance to extend the Completion Time of Required Action B.1 if needed for installation or removal of a blind flange. The consequences of an accident during the proposed extended Required Action B.1 Completion Time are no different than the consequences of an accident during the existing 4 hour Completion Time. The MDCLP provides a source of cooling water to the operable CL header. However, the operable header is also served by the associated diesel driven cooling water pump (DDCLP) and that CL header remains operable even if the MDCLP is inoperable, so the extended time will not significantly increase consequences of any of the accidents that CL mitigates.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change will not permanently alter the design or function of the CL system. The proposed change provides an allowance for the MDCLP to be valved out of service and inoperable longer than the TS 3.7.8 Required Action B.1 Completion Time of four hours. Up to 36 hours will be required for the purpose of installing a blind flange if the leakage across the valve supporting the planned isolation is found to be too high. Similarly, up to 36 hours will be required for the purpose of removing the blind flange.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change extends the Completion Time of Required Action B.1 of TS 3.7.8. Required Action B.1 verifies operability of the MDCLP. The MDCLP provides a source of cooling water to the operable header. However, the operable header is also served by the associated DDCLP and that CL header remains operable even if the MDCLP is inoperable.
Therefore, the proposed change does not result in a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the license amendment requests involve NSHC.
The NRC is seeking public comments on this proposed determination that the license amendment requests involve NSHC. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendments until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendments before expiration of the 60-day notice period if the Commission concludes the amendments involve no significant hazards consideration. In addition, the Commission may issue the amendments prior to the expiration of the 30-day comment period if circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility. If the Commission takes action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any person (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult 10 CFR 2.309. If a petition is filed, the presiding officer will rule on the petition and, if appropriate, a notice of a hearing will be issued.
Petitions must be filed no later than 60 days from the date of publication of this notice in accordance with the filing instructions in the “Electronic Submissions (E-Filing”) section of this document. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii).
If a hearing is requested and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration, which will serve to establish when the hearing is held. If the final determination is that the amendment requests involve no significant hazards consideration, the Commission may issue the amendments and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendments. If the final determination is that the amendment requests involve a significant hazards consideration, then any hearing held would take place before the issuance of the amendments unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally recognized Indian Tribe, or designated agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h) no later than 60 days from the date of publication of this notice. Alternatively, a State, local governmental body, Federally recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
For information about filing a petition and about participation by a person not a party under 10 CFR 2.315, see ADAMS Accession No. ML20340A053 and on the NRC website at
All documents filed in NRC adjudicatory proceedings including documents filed by an interested State, local governmental body, Federally recognized Indian Tribe, or designated agency thereof that requests to participate under 10 CFR 2.315(c), must be filed in accordance with 10 CFR 2.302. The E-Filing process requires
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted in accordance with 10 CFR 2.302(b)-(d). Participants filing adjudicatory documents in this manner are responsible for serving their documents on all other participants. Participants granted an exemption under 10 CFR 2.302(g)(2) must still meet the electronic formatting requirement in 10 CFR 2.302(g)(1), unless the participant also seeks and is granted an exemption from 10 CFR 2.302(g)(1).
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket, which is publicly available at
For further details with respect to this action, see the application for license amendments dated October 7, 2021 (ADAMS Accession No. ML21281A017).
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
1.
This Notice will be published in the
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 15, 2021, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 7, 2021, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 7, 2021, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 13, 2021, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 13, 2021, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 7, 2021, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 6, 2021, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 5, 2021, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 8, 2021, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 4, 2021, it filed with the Postal Regulatory Commission a
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission Asset Management Advisory Committee (“AMAC”) will hold a public meeting on Thursday, October 28, 2021 at 10:00 a.m.
The meeting will be conducted by remote means. Members of the public may watch the webcast of the meeting on the Commission's website at
The meeting will begin at 10:00 a.m. and will be open to the public by webcast on the Commission's website at
On October 19, 2021, the Commission issued notice of the meeting (Release No. 34-93380), indicating that the meeting is open to the public and inviting the public to submit written comments to AMAC. This Sunshine Act notice is being issued because a majority of the Commission may attend the meeting.
The meeting will include a discussion of matters in the asset management industry relating to the Evolution of Advice and the Small Advisers and Small Funds Subcommittees, including panel discussions and potential recommendations.
For further information, please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1)
The Exchange proposes to extend the current pilot program related to Rule 7.10 (Clearly Erroneous Executions) to the close of business on April 20, 2022. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of the proposed rule change is to extend the current pilot program related to Rule 7.10 (Clearly Erroneous Executions) to the close of business on April 20, 2022. The pilot program is currently due to expire on October 20, 2021.
On September 10, 2010, the Commission approved, on a pilot basis, changes to Article 20, Rule 10 that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set forth in the rule.
These changes were originally scheduled to operate for a pilot period to coincide with the pilot period for the Plan to Address Extraordinary Market Volatility (the “Limit Up-Limit Down Plan” or “LULD Plan”),
The Exchange now proposes to amend Rule 7.10 to extend the pilot's effectiveness for a further six months until the close of business on April 20, 2022. If the pilot period is not either extended, replaced or approved as permanent, the prior versions of paragraphs (c), (e)(2), (f), and (g) of Article 20, Rule 10 prior to being amended by SR-CHX-2010-13 shall be in effect, and the provisions of paragraphs (i) through (k) shall be null and void.
The Exchange does not propose any additional changes to Rule 7.10. Extending the effectiveness of these rules for an additional six months will provide the Exchange and other self-regulatory organizations additional time to consider whether further amendments to the clearly erroneous execution rules are appropriate.
The Exchange believes the proposed rule change is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposal would ensure the continued, uninterrupted operation of harmonized clearly erroneous execution rules across the U.S. equities markets while the Exchange and other self-regulatory organizations consider whether further amendments to these rules are appropriate. The Exchange understands that the other national securities exchanges and FINRA will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is filing a proposal to amend the Exchange's Fee Schedule (“Fee Schedule”) to adjust the Options Regulatory Fee (“ORF”).
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Currently, the Exchange assesses ORF in the amount of $0.00060 per contract side. The Exchange proposes to increase the amount of ORF from $0.00060 per contract side to $0.0016 per contract side. The Exchange initially filed this proposal on July 30, 2021 (SR-EMERALD-2021-24) and withdrew such filing on August 12, 2021. The Exchange refiled this proposal on August 12, 2021 (SR-EMERALD-2021-27) and withdrew such filing on October 7, 2021. The Exchange proposes to implement this fee change effective October 7, 2021.
In light of historical and projected volume changes and shifts in the industry and on the Exchange, as well as changes to the Exchange's regulatory cost structure, the Exchange proposes to change the amount of ORF that will be collected by the Exchange. The Exchange's proposed change to the ORF should balance the Exchange's regulatory revenue against the anticipated regulatory costs. The Exchange will continue to monitor ORF to ensure that revenue collected from the ORF, in combination with other regulatory fees and fines, does not exceed the Exchange's total regulatory costs.
The Exchange notes it originally adopted the current ORF amount at a significantly lower rate as the Exchange had just begun operations and that the amount of ORF it collects has remain unchanged since it was first adopted in
Currently, the Exchange assesses the per-contract ORF to each Member for all options transactions, including Mini Options, cleared or ultimately cleared by the Member, which are cleared by the Options Clearing Corporation (“OCC”) in the “customer” range,
To illustrate how the Exchange assesses and collects ORF, the Exchange provides the following set of examples. For a transaction that is executed on the Exchange and the ORF is assessed, if there is no change to the clearing account of the original transaction, then the ORF is collected from the Member that is the executing clearing firm for the transaction (the Exchange notes that, for purposes of the Fee Schedule, when there is no change to the clearing account of the original transaction, the executing clearing firm is deemed to be the ultimate clearing firm). If there is a change to the clearing account of the original transaction (
As a practical matter, when a transaction that is subject to the ORF is not executed on the Exchange, the Exchange lacks the information necessary to identify the order-entering member for that transaction. There are a multitude of order-entering market participants throughout the industry, and such participants can make changes to the market centers to which they connect, including dropping their connection to one market center and establishing themselves as participants on another. For these reasons, it is not possible for the Exchange to identify, and thus assess fees such as ORF, on order-entering participants on away markets on a given trading day. Clearing members, however, are distinguished from order-entering participants because they remain identified to the Exchange on information the Exchange receives from OCC regardless of the identity of the order-entering participant, their location, and the market center on which they execute transactions. Therefore, the Exchange believes it is more efficient for the operation of the Exchange and for the marketplace as a whole to collect the ORF from clearing members.
The Exchange monitors the amount of revenue collected from the ORF to ensure that it, in combination with other regulatory fees and fines, does not exceed regulatory costs. In determining whether an expense is considered a regulatory cost, the Exchange reviews all costs and makes determinations if there is a nexus between the expense and a regulatory function. The Exchange notes that fines collected by the Exchange in connection with a disciplinary matter offset ORF.
As discussed below, the Exchange believes it is appropriate to charge the ORF only to transactions that clear as customer at the OCC. The Exchange believes that its broad regulatory responsibilities with respect to a Member's activities supports applying the ORF to transactions cleared but not executed by a Member. The Exchange's regulatory responsibilities are the same regardless of whether a Member enters a transaction or clears a transaction executed on its behalf. The Exchange regularly reviews all such activities, including performing surveillance for position limit violations, manipulation,
Revenue generated from ORF, when combined with all of the Exchange's other regulatory fees and fines, is designed to recover a material portion of the regulatory costs to the Exchange of the supervision and regulation of Members' customer options business including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities. Regulatory costs include direct regulatory expenses and certain indirect expenses in support of the regulatory function. The direct expenses include in-house and third party service provider costs to support the day-to-day regulatory work such as surveillances, investigations and examinations. The indirect expenses include support from such areas as the Office of the General Counsel, technology, and internal audit. Indirect expenses are estimated to be approximately 53% of the total regulatory costs for 2021. Thus, direct expenses are estimated to be approximately 47% of total regulatory costs for 2021. The Exchange notes that its estimated direct and indirect expense percentages are in the range and similar to those at other options exchanges.
The ORF is designed to recover a material portion of the costs to the Exchange of the supervision and regulation of its members, including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities.
Based on the Exchange's most recent review, the Exchange proposes to increase the amount of ORF that will be collected by the Exchange from $0.00060 per contract side to $0.0016 per contract side. The Exchange issued an Options Regulatory Fee Announcement on July 2, 2021, indicating the proposed rate change for August 1, 2021.
There can be no assurance that the Exchange's final costs for 2021 will not differ materially from these expectations and prior practice, nor can the Exchange predict with certainty whether options volume will remain at the current level going forward. The Exchange notes however, that when combined with regulatory fees and fines, the revenue being generated utilizing the current ORF rate results in revenue that is running below the Exchange's estimated regulatory costs for the year. Particularly, as noted above, the Exchange initially set its ORF at a substantially lower rate when the Exchange first launched operations.
The Exchange will continue to monitor the amount of revenue collected from the ORF to ensure that it, in combination with its other regulatory fees and fines, does not exceed the Exchange's total regulatory costs. The Exchange will continue to monitor MIAX Emerald regulatory costs and revenues at a minimum on a semi-annual basis. If the Exchange determines regulatory revenues exceed or are insufficient to cover a material portion of its regulatory costs, the Exchange will adjust the ORF by submitting a fee change filing to the Commission.
In connection with this filing, the Exchange notes that its affiliates, MIAX Pearl and MIAX, will also be adjusting the ORF fees that each of those exchanges charge.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes that increasing the ORF from $0.00060 to $0.0016 per contract side is equitable and not unfairly discriminatory because it is objectively allocated to Members in that it is charged to all Members on all their transactions that clear as customer at the OCC, with an exception.
The Exchange notes it originally adopted the current ORF amount at a significantly lower rate as the Exchange had just begun operations and that the amount of ORF it collects has remain unchanged since it was first adopted in 2019.
The ORF is designed to recover a material portion of the costs of supervising and regulating Members' customer options business including performing routine surveillances and investigations, as well as policy, rulemaking, interpretive and enforcement activities. The Exchange will monitor the amount of revenue collected from the ORF to ensure that it, in combination with its other regulatory fees and fines, does not exceed the Exchange's total regulatory costs. The Exchange has designed the ORF to generate revenues that, when combined with all of the Exchange's other regulatory fees, will be less than or equal to the Exchange's regulatory costs, which is consistent with the Commission's view that regulatory fees be used for regulatory purposes and not to support the Exchange's business side. In this regard, the Exchange believes that the proposed increase to the fee is reasonable.
The Exchange believes that continuing to limit changes to the ORF to twice a year on specific dates with advance notice is reasonable because it gives participants certainty on the timing of changes, if any, and better enables them to properly account for ORF charges among their customers. The Exchange believes that continuing to limit changes to the ORF to twice a year on specific dates is equitable and not unfairly discriminatory because it will apply in the same manner to all Members that are subject to the ORF and provide them with additional advance notice of changes to that fee.
The Exchange believes that collecting the ORF from non-Members when such non-Members ultimately clear the transaction (that is, when the non-Member is the “ultimate clearing firm” for a transaction in which a Member was assessed the ORF) is an equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities. The Exchange notes that there is a material distinction between “assessing” the ORF and “collecting” the ORF. The ORF is only assessed to a Member with respect to a particular transaction in which it is either the executing clearing firm or ultimate clearing firm. The Exchange does not assess the ORF to non-Members. Once, however, the ORF is assessed to a Member for a particular transaction, the ORF may be collected from the Member or a non-Member, depending on how the transaction is cleared at OCC. If there was no change to the clearing account of the original transaction, the ORF would be collected from the Member. If there was a change to the clearing account of the original transaction and a non-Member becomes the ultimate clearing firm for that transaction, then the ORF will be collected from that non-Member. The Exchange believes that this collection practice continues to be reasonable and appropriate, and was originally instituted for the benefit of clearing firms that desired to have the ORF be collected from the clearing firm that ultimately clears the transaction.
The Exchange designed the ORF so that revenue generated from the ORF, in combination with its other regulatory fees and fines, does not exceed regulatory costs, which is consistent with the view of the Commission that regulatory fees be used for regulatory purposes and not to support the Exchange's business operations.
The Exchange also believes the proposed fee change is equitable and not unfairly discriminatory in that it is charged to all Members on all their transactions that clear in the customer range at the OCC, with an exception.
The Exchange does not believe that the proposed rule change will impose any burden on competition not
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing with the Commission a proposed rule change to extend the current pilot program related to MEMX Rule 11.15, “Clearly Erroneous Executions,” to the close of business on April 20, 2022. The text of the proposed rule change is provided in Exhibit 5.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to extend the effectiveness of the Exchange's current rule applicable to Clearly Erroneous Executions to the close of business on April 20, 2022. Portions of Rule 11.15, explained in further detail below, are currently operating as a pilot program which is set to expire on October 20, 2021.
On May 4, 2020, the Commission approved MEMX's Form 1 Application to register as a national securities exchange with rules including, on a pilot basis, MEMX Rule 11.15.
Previously, the clearly erroneous pilot programs adopted by the national securities exchanges and the current Plan to Address Extraordinary Market Volatility Pursuant to Rule 608 of Regulation NMS under the Act (the “Limit Up-Limit Down Plan” or the “LULD Plan”) were a single pilot program. On April 17, 2019, the Commission approved the Eighteenth Amendment to the LULD Plan, allowing the LULD Plan to operate on a permanent, rather than pilot, basis.
More recently, national securities exchanges filed with the Commission amendments to exchange rules to extend the pilot's effectiveness to the close of business on October 20, 2021.
The Exchange now proposes to amend MEMX Rule 11.15 to extend the pilot's effectiveness to the close of business on April 20, 2022. MEMX understands that certain other national securities exchanges and the Financial Industry Regulatory Authority (“FINRA”) also intend to file similar proposals to extend their respective clearly erroneous execution pilot programs, the substance of which are identical to MEMX Rule 11.15.
The Exchange does not propose any additional changes to MEMX Rule 11.15. By proposing to extend the pilot, the Exchange will avoid any discrepancy between its clearly erroneous pilot program and the pilot programs of other exchanges and FINRA, as the language of such rules are identical to MEMX Rule 11.15 and, as noted above, other exchanges and FINRA also intend to file proposals to extend their respective clearly erroneous execution pilot programs. The Exchange believes the benefits to market participants from the more objective clearly erroneous executions rule should continue on a limited six month pilot basis. As the LULD Plan was approved by the Commission to operate on a permanent, rather than pilot, basis the Exchange intends to assess whether additional changes should also be made to the operation of the clearly erroneous execution rules. Extending the effectiveness of MEMX Rule 11.15 for an additional six months should provide the Exchange and other national securities exchanges additional time to consider future amendments, if any, to the clearly erroneous execution rules.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
In particular, the Exchange believes that extending the clearly erroneous execution pilot under MEMX Rule 11.15 for an additional six months would help assure that the determination of whether a clearly erroneous trade has occurred will be based on clear and objective criteria, and that the resolution of the incident will occur promptly through a transparent process. The proposed extension would also help assure consistent results in handling erroneous trades across the U.S. equities markets, thus furthering fair and orderly markets, the protection of investors and the public interest. Based on the foregoing, the Exchange believes the clearly erroneous executions rule should continue to be in effect on a pilot basis while the Exchange and other national securities exchanges consider and develop a permanent proposal for clearly erroneous executions reviews.
The Exchange believes its proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange understands that FINRA and certain other national securities exchanges will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-MEMX-2021-13. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 15g-6 requires brokers and dealers that sell penny stocks to provide their customers monthly account statements containing information with regard to the penny stocks held in customer accounts. The purpose of the rule is to increase the level of disclosure to investors concerning penny stocks generally and specific penny stock transactions.
The Commission estimates that approximately 178 broker-dealers will spend an average of approximately 78 hours annually to comply with this rule. Thus, the total compliance burden is approximately 13,884 burden-hours per year.
An agency may not conduct or sponsor, and a person is not required to
The public may view background documentation for this information collection at the following website:
Pursuant to Section 19(b)(1)
The Exchange proposes to extend the current pilot program related to Rule 7.10 (Clearly Erroneous Executions) to the close of business on April 20, 2022. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of the proposed rule change is to extend the current pilot program related to Rule 7.10 (Clearly Erroneous Executions) to the close of business on April 20, 2022. The pilot program is currently due to expire on October 20, 2021.
On September 10, 2010, the Commission approved, on a pilot basis, changes to Rule 11.19 (Clearly Erroneous Executions) that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set forth in the rule.
These changes were originally scheduled to operate for a pilot period to coincide with the pilot period for the Plan to Address Extraordinary Market Volatility (the “Limit Up-Limit Down Plan” or “LULD Plan”),
The Exchange now proposes to amend Rule 7.10 to extend the pilot's effectiveness for a further six months to the close of business on April 20, 2022. If the pilot period is not either extended, replaced or approved as permanent, the prior versions of paragraphs (c), (e)(2), (f), and (g) as described in former Rule 11.19 will be in effect, and the
The Exchange does not propose any additional changes to Rule 7.10. Extending the effectiveness of Rule 7.10 for an additional six months will provide the Exchange and other self-regulatory organizations additional time to consider whether further amendments to the clearly erroneous execution rules are appropriate.
The Exchange believes the proposed rule change is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposal would ensure the continued, uninterrupted operation of harmonized clearly erroneous execution rules across the U.S. equities markets while the Exchange and other self-regulatory organizations consider whether further amendments to these rules are appropriate. The Exchange understands that the other national securities exchanges and FINRA will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe BYX Exchange, Inc. (“BYX” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposal to extend the pilot related to the market-wide circuit breaker in Rule 11.18. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
BYX Rules 11.18(a) through (d), (f) and (g) describe the methodology for determining when to halt trading in all stocks due to extraordinary market volatility,
The market-wide circuit breaker under Rule 11.18 provides an important, automatic mechanism that is invoked to promote stability and investor confidence during a period of significant stress when securities markets experience extreme broad-based declines. All U.S. equity exchanges and FINRA adopted uniform rules on a pilot basis relating to market-wide circuit breakers in 2012 (“MWCB Rules”), which are designed to slow the effects of extreme price movement through coordinated trading halts across securities markets when severe price declines reach levels that may exhaust market liquidity.
Pursuant to Rule 11.18, a market-wide trading halt will be triggered if the S&P 500 Index declines in price by specified percentages from the prior day's closing price of that index. Currently, the
In the Spring of 2020, at the outset of the worldwide COVID-19 pandemic, U.S. equities markets experienced four MWCB Level 1 halts, on March 9, 12, 16, and 18, 2020. In each instance, the markets halted as intended upon a 7% drop in the S&P 500 Index, and resumed as intended 15 minutes later.
In response to these events, the previously-convened MWCB Taskforce (“Taskforce”) reviewed the March 2020 halts and considered whether any immediate changes to the MWCB mechanism should be made. The Taskforce, consisting of representatives from equities exchanges, futures exchanges, FINRA, broker-dealers, and other market participants, had been assembled in early 2020 to consider more generally potential changes to the MWCB mechanism. The Taskforce held ten meetings in the Spring and Summer of 2020 that were attended by Commission staff to consider, among other things: (1) Whether to retain the S&P 500 Index as the standard for measuring market declines; (2) whether halts that occur shortly after the 9:30 a.m. market open cause more harm than good; and (3) what additional testing of the MWCB mechanism should be done.
After considering data and anecdotal reports of market participants' experiences during the March 2020 MWCB events, the Taskforce did not recommend immediate changes be made to the use of the S&P 500 Index as the reference price against which market declines are measured, or to the current MWCB mechanism which permits halts even shortly after the 9:30 a.m. market open. The Taskforce recommended creating a process for a backup reference price in the event that the S&P 500 Index becomes unavailable, and enhancing functional MWCB testing. The Taskforce also asked CME to consider modifying its rules to enter into a limit-down state in the futures pre-market after a 7% decline instead of 5%.
On September 17, 2020, the Director of the Division of Trading and Markets requested that the equities exchanges and FINRA prepare a more complete study of the design and operation of the MWCB mechanism and the LULD Plan during the period of volatility in the Spring of 2020. In response to the request, the SROs created a MWCB “Working Group” composed of SRO representatives and industry advisers that included members of the advisory committees to both the LULD Plan and the NMS Plans governing the collection, consolidation, and dissemination of last-sale transaction reports and quotations in NMS Stocks. The Working Group met regularly from September 2020 through March 2021 to consider the Commission's request, review data, and compile its study. The Working Group's efforts in this respect incorporated and built on the work of an MWCB Task Force. The Working Group submitted its study to the Commission on March 31, 2021 (the “Study”).
The SROs have since worked on a proposed a rule change to make the Pilot Rules permanent, consistent with the Working Group's recommendations. New York Stock Exchange (“NYSE”) filed such proposed rule change on July 16, 2021.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning when and how to halt trading in all stocks as a result of extraordinary market volatility. Based on the foregoing, the Exchange believes the benefits to market participants from the MWCB under Rule 11.18 should continue on a pilot basis because the MWCB will promote fair and orderly markets, and protect investors and the public interest.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act because the proposal would ensure the continued, uninterrupted operation of a consistent
No written comments were either solicited or received on the proposed rule change.
Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-CboeBYX-2021-026. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to extend the current pilot program related to Rule 7.10-E (Clearly Erroneous Executions) to the close of business on April 20, 2022. The proposed rule change is
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of the proposed rule change is to extend the current pilot program related to Rule 7.10-E (Clearly Erroneous Executions) to the close of business on April 20, 2022. The pilot program is currently due to expire on October 20, 2021.
On September 10, 2010, the Commission approved, on a pilot basis, changes to Rule 7.10-E that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set forth in the rule.
These changes were originally scheduled to operate for a pilot period to coincide with the pilot period for the Plan to Address Extraordinary Market Volatility (the “Limit Up-Limit Down Plan” or “LULD Plan”),
The Exchange now proposes to amend Rule 7.10-E to extend the pilot's effectiveness for a further six months until the close of business on April 20, 2022. If the pilot period is not either extended, replaced or approved as permanent, the prior versions of paragraphs (c), (e)(2), (f), and (g) shall be in effect, and the provisions of paragraphs (i) through (k) shall be null and void.
The Exchange does not propose any additional changes to Rule 7.10-E. Extending the effectiveness of Rule 7.10-E for an additional six months will provide the Exchange and other self-regulatory organizations additional time to consider whether further amendments to the clearly erroneous execution rules are appropriate.
The Exchange believes the proposed rule change is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposal would ensure the continued, uninterrupted operation of harmonized clearly erroneous execution rules across the U.S. equities markets while the Exchange and other self-regulatory organizations consider whether further amendments to these rules are appropriate. The Exchange understands that the other national securities exchanges and FINRA will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
On February 12, 1935, the Commission adopted Rule 12d2-1
Any such suspension may be continued until such time as the Commission may determine that the suspension is designed to evade the provisions of Section 12(d) of the Act and Rule 12d2-2 thereunder.
The trading suspension notices serve a number of purposes. First, they inform the Commission that an exchange has suspended from trading a listed security or reintroduced trading in a previously suspended security. They also provide the Commission with information necessary for it to determine that the suspension has been accomplished in accordance with the rules of the exchange, and to verify that the exchange has not evaded the requirements of Section 12(d) of the Act and Rule 12d2-2 thereunder by improperly employing a trading suspension. Without Rule 12d2-1, the Commission would be unable to fully implement these statutory responsibilities.
There are 24 national securities exchanges
The collection of information obligations imposed by Rule 12d2-1 is mandatory. The response will be available to the public and will not be kept confidential.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Regulation ATS provides a regulatory structure for alternative trading systems. Rule 304 of Regulation ATS provides conditions for NMS Stock ATSs seeking to rely on the exemption from the definition of “exchange” provided by Rule 3a1-1(a) of the Exchange Act, including to file a Form ATS-N, and for that Form ATS-N to become effective. Form ATS-N requires NMS Stock ATSs to provide information about their manner of operations, the broker-dealer operator, and the ATS-related activities of the broker-dealer operator and its affiliates to comply with the conditions provided under Rule 304. Form ATS-N promotes more efficient and effective market operations by providing more transparency to market participants about the operations of NMS Stock ATSs and the potential conflicts of interest of the controlling broker-dealer operator and its affiliates, and helps brokers meet their best execution obligations to their customers. Operational transparency rules, including Form ATS-N, are designed to increase competition among trading centers in regard to order routing and execution quality.
The Commission staff estimates that entities subject to the requirements of Rule 304 and Form ATS-N will spend a total of approximately 2,042 hours a year to comply with the Rule.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, c/o Cynthia Roscoe, 100 F Street NE, Washington, DC 20549, or send an email to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe EDGA Exchange, Inc. (“EDGA” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposal to extend the pilot related to the market-wide circuit breaker in Rule 11.16. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
EDGA Rules 11.16(a) through (d), (f) and (g) describe the methodology for determining when to halt trading in all stocks due to extraordinary market volatility,
The market-wide circuit breaker under Rule 11.16 provides an important, automatic mechanism that is invoked to promote stability and investor confidence during a period of significant stress when securities markets experience extreme broad-based declines. All U.S. equity exchanges and FINRA adopted uniform rules on a pilot basis relating to market-wide circuit breakers in 2012 (“MWCB Rules”), which are designed to slow the effects of extreme price movement through coordinated trading halts across securities markets when severe price declines reach levels that may exhaust market liquidity.
Pursuant to Rule 11.16, a market-wide trading halt will be triggered if the S&P 500 Index declines in price by specified percentages from the prior day's closing price of that index. Currently, the triggers are set at three circuit breaker thresholds: 7% (Level 1), 13% (Level 2), and 20% (Level 3). A market decline that triggers a Level 1 or Level 2 halt after 9:30 a.m. ET and before 3:25 p.m. ET would halt market-wide trading for
In the Spring of 2020, at the outset of the worldwide COVID-19 pandemic, U.S. equities markets experienced four MWCB Level 1 halts, on March 9, 12, 16, and 18, 2020. In each instance, the markets halted as intended upon a 7% drop in the S&P 500 Index, and resumed as intended 15 minutes later.
In response to these events, the previously-convened MWCB Taskforce (“Taskforce”) reviewed the March 2020 halts and considered whether any immediate changes to the MWCB mechanism should be made. The Taskforce, consisting of representatives from equities exchanges, futures exchanges, FINRA, broker-dealers, and other market participants, had been assembled in early 2020 to consider more generally potential changes to the MWCB mechanism. The Taskforce held ten meetings in the Spring and Summer of 2020 that were attended by Commission staff to consider, among other things: (1) Whether to retain the S&P 500 Index as the standard for measuring market declines; (2) whether halts that occur shortly after the 9:30 a.m. market open cause more harm than good; and (3) what additional testing of the MWCB mechanism should be done.
After considering data and anecdotal reports of market participants' experiences during the March 2020 MWCB events, the Taskforce did not recommend immediate changes be made to the use of the S&P 500 Index as the reference price against which market declines are measured, or to the current MWCB mechanism which permits halts even shortly after the 9:30 a.m. market open. The Taskforce recommended creating a process for a backup reference price in the event that the S&P 500 Index becomes unavailable, and enhancing functional MWCB testing. The Taskforce also asked CME to consider modifying its rules to enter into a limit-down state in the futures pre-market after a 7% decline instead of 5%.
On September 17, 2020, the Director of the Division of Trading and Markets requested that the equities exchanges and FINRA prepare a more complete study of the design and operation of the MWCB mechanism and the LULD Plan during the period of volatility in the Spring of 2020. In response to the request, the SROs created a MWCB “Working Group” composed of SRO representatives and industry advisers that included members of the advisory committees to both the LULD Plan and the NMS Plans governing the collection, consolidation, and dissemination of last-sale transaction reports and quotations in NMS Stocks. The Working Group met regularly from September 2020 through March 2021 to consider the Commission's request, review data, and compile its study. The Working Group's efforts in this respect incorporated and built on the work of an MWCB Task Force. The Working Group submitted its study to the Commission on March 31, 2021 (the “Study”).
The SROs have since worked on a proposed a rule change to make the Pilot Rules permanent, consistent with the Working Group's recommendations. New York Stock Exchange (“NYSE”) filed such proposed rule change on July 16, 2021.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning when and how to halt trading in all stocks as a result of extraordinary market volatility. Based on the foregoing, the Exchange believes the benefits to market participants from the MWCB under Rule 11.16 should continue on a pilot basis because the MWCB will promote fair and orderly markets, and protect investors and the public interest.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act because the proposal would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Exchange and the other SROs finalize their proposals to make the Pilot Rules permanent. Further, the Exchange understands that FINRA and other national securities exchanges will file proposals to extend
No written comments were either solicited or received on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe BZX Exchange, Inc. (“BZX” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposed rule change to extend the current pilot
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to extend the effectiveness of the Exchange's current rule applicable to Clearly Erroneous Executions to the close of business on April 20, 2022. Portions of Rule 11.17, explained in further detail below, are currently operating as a pilot program set to expire on October 20, 2021.
On September 10, 2010, the Commission approved, on a pilot basis, changes to BZX Rule 11.17 that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set forth in the rule.
On December 26, 2018, the Commission published the proposed Eighteenth Amendment
The Exchange now proposes to amend BZX Rule 11.17 to extend the pilot's effectiveness to the close of business on April 20, 2022. The Exchange understands that the other national securities exchanges and Financial Industry Regulatory Authority (“FINRA”) have filed or plan to file similar proposals to extend their respective clearly erroneous execution pilot programs, the substance of which are identical to BZX Rule 11.17.
The Exchange does not propose any additional changes to BZX Rule 11.17. The Exchange believes the benefits to market participants from the more objective clearly erroneous executions rule should continue on a limited six month pilot basis. As the Plan was approved by the Commission to operate on a permanent, rather than pilot, basis the Exchange intends to assess whether additional changes should also be made to the operation of the clearly erroneous execution rules. Extending the effectiveness of BZX Rule 11.17 for an additional six months should provide the Exchange and other national securities exchanges additional time to consider further amendments, if any, to the clearly erroneous execution rules.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that extending the clearly erroneous execution pilot under BZX Rule 11.17 for an additional six months would help assure that the determination of whether a clearly erroneous trade has occurred will be based on clear and objective criteria, and that the resolution of the incident will occur promptly through a transparent process. The proposed rule change would also help assure consistent results in handling erroneous trades across the U.S. equities markets, thus furthering fair and orderly markets, the protection of investors and the public interest. Based on the foregoing, the Exchange believes the amended clearly erroneous executions rule should continue to be in effect on a pilot basis while the Exchange and the other national securities exchanges consider and develop a permanent proposal for clearly erroneous execution reviews.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange understands that FINRA and other national securities exchanges have or will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No comments were solicited or received on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to amend its Fees Schedule with respect to its Lead Market-Maker (“LMM”) Incentive Programs. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fees Schedule to amend the Global Trading Hours (“GTH”) Cboe Volatility Index (“VIX”) options and VIX Weekly (VIXW) options LMM Incentive Program and the GTH S&P 500 Index (“SPX”) options and SPX Weekly (“SPXW”) options LMM Incentive Program.
Both LMM Incentive Programs provide a rebate to Trading Permit Holders (“TPHs”) with LMM appointments to the respective incentive program that meet certain quoting standards in the applicable series in a month. The Exchange notes that meeting or exceeding the quoting standards (both current and as proposed; described in further detail below) in each of the LMM Incentive Program products to receive the applicable rebate (both currently offered and as proposed; described in further detail below) is optional for an LMM appointed to a program. Rather, an LMM appointed to an incentive program is eligible to receive the corresponding rebate if it satisfies the applicable quoting standards, which the Exchange believes encourages the LMM to provide liquidity in the applicable class and trading session (
The Exchange first proposes to amend its GTH VIX/VIXW LMM Incentive Program. Currently, the program provides that if an LMM in VIX/VIXW provides continuous electronic quotes during GTH that meet or exceed the heightened quoting standards (below) in at least 99% of each of the VIX and VIXW series, 90% of the time in a given month, the LMM will receive a rebate for that month in the amount of $15,000 for VIX and $5,000 for VIXW (or pro-rated amount if an appointment begins after the first trading day of the month or ends prior to the last trading day of the month) for that month. Additionally, if the appointed LMM provides continuous electronic quotes during GTH that meet or exceed the above VIX heightened quoting standards in at least 99% of the VIX series, 90% of the time in a given month, the LMM will receive a rebate for that month of $0.03 per VIX/VIXW contract executed in its Market-Maker capacity during RTH.
The Exchange proposes to restructure the GTH VIX/VIXW LMM Incentive Program by adopting a two sets of quoting standards for VIX options; a set of basic quoting standards and a set of heightened quoting standards. The Exchange notes that the current quoting standards for VIXW will remain the same but will be considered basic quoting standards for VIXW. As proposed, the program provides that, if the appointed LMM provides continuous electronic quotes during GTH that meet or exceed the basic quoting standards in the same percentage of series in the same percentage of time (
Additionally, if the appointed LMM provides continuous electronic quotes during GTH that meet or exceed the new VIX heighted quoting standards (as proposed below) in the same percentage of VIX series (99%) for the same percentage of time (90%) of the time in a given month, the LMM will receive the same rebate currently offered ($0.03) for that month per VIX/VIXW contract executed in its Market-Maker capacity during Regular Trading Hours.
The Exchange believes the proposed basic and heightened quoting requirements for VIX options under the GTH VIX/VIXW LMM Incentive Program are designed to continue to encourage LMMs appointed to the program to provide significant liquidity in VIX options during GTH. Particularly, by adopting different sets of quoting standards that are applicable depending on the VIX Index value at the prior close (
In addition to this, the Exchange proposes to update the time to expiration in the mid-term expiration category for the VIX basic quoting standards (as proposed) from a range of 61 to 270 days to a range of 61 to 180 days, and in the long-term expiration category from 271 days or greater to 181 days or greater. The Exchange notes that it has recently begun listing more VIX options that expire more than 180 days out and that the Exchange understands that it is more difficult for LMMs to meet the narrower pricing standards current under the current mid-term expiration category for VIX options that expire in 181 days or more. As such, the Exchange wishes to align the long-term expiration category in a manner that makes it easier for LMMs to achieve the quoting standards thereunder, particularly as the Exchange has increased the number of VIX options listed that expire more than 180 days out.
The Exchange proposes to amend the GTH SPX/SPXW LMM Incentive Program. Currently, under the GTH SPX/SPXW LMM Incentive Program, if an LMM in SPX/SPXW provides continuous electronic quotes during GTH that meet or exceed the heightened quoting standards (below) in at least 85% of each of the SPX and SPXW series, 90% of the time in a given month, the LMM will receive a rebate for that month in the amount of $20,000 for SPX and $30,000 for SPXW (or pro-rated amount if an appointment begins after the first trading day of the month or ends prior to the last trading day of the month) for that month.
The Exchange proposes to adopt a new set of heightened quoting standards (below) under the GTH SPX/SPXW LMM Incentive Program, similar to the proposed new basic quoting standards under the GTH VIX/VIXW LMM Incentive Program, as described above.
For the same reasons described above regarding the new quoting standards for the GTH VIX/VIXW the LMM Incentive Program, the Exchange believes that, by adopting generally wider widths and smaller quote sizes as the value of the VIX in the proposed VIX value categories becomes relatively higher based on the closing VIX Index value from the preceding trading session, the proposed rule change is designed to better reflect market characteristics in SPX and SPXW options where the VIX Index may be experiencing higher volatility (
In addition to this, the Exchange proposes to update the time to expiration in the long-term expiration category from 271 days or greater to a range of 271 days to 500 days. The Exchange notes that it has recently begun listing more SPX/SPXW options with expirations greater than 271 days. The Exchange understands that it is difficult for LMMs to price options that generally expire more than 500 days out; therefore, the Exchange wishes to narrow the long-term expiration category in a manner that makes it easier for LMMs to achieve the quoting standards thereunder, particularly as the Exchange has increased the number of options listed within this expiry category.
The Exchange also proposes to update the rebate amount received for meeting the heightened quoting standards, as proposed, in a given month in SPX, by slightly decreasing the rebate amount from $20,000 to $15,000 and in SPXW, by slightly increasing the rebate amount from $30,000 to $35,000. The Exchange has observed a recent increase in demand in SPWX options and therefore wishes to further incentive LMM appointed to the program to provide significant liquidity in SPXW options by meeting the heightened quoting standards, while continuing to allocate the same total rebate amount ($50,000) across SPX and SPXW.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
Regarding both the GTH SPX/SPXW and VIX/VIXW LMM Incentive Programs generally, the Exchange believes it is reasonable, equitable and not unfairly discriminatory to continue to offer these financial incentives, including as amended, to LMMs appointed to the programs, because it benefits all market participants trading in the corresponding products during GTH. These incentive programs encourage the LMMs appointed to such programs to satisfy the heightened quoting standards, which may increase liquidity and provide more trading opportunities and tighter spreads. Indeed, the Exchange notes that these LMMs serve a crucial role in providing quotes and the opportunity for market participants to trade VIX/VIXW and SPX/SPXW options, as applicable, which can lead to increased volume, providing for robust markets. The
The Exchange believes that the proposed changes to the LMM Incentive Programs are reasonable. Particularly, the Exchange believes that it is reasonable to adopt new quoting requirements in the GTH VIX/VIXW and SPX/SPXW LMM Incentive Programs, as these proposed new quoting requirements are reasonably designed to continue to encourage LMMs appointed to the respective incentive programs to provide significant liquidity in VIX options and SPX/SPXW options during GTH. In particular, the Exchange believes that it is reasonable to adopt new widths and sizes in the quoting standards under the GTH VIX/VIXW and SPX/SPXW LMM Incentive Programs, as applicable, as the proposed rule change is generally designed to further align the quote widths and size standards for VIX options and SPX/SPXW options with the market characteristics in each applicable class. As such, the Exchange believes the new quote widths and size are reasonably designed to facilitate LMMs appointed to the GTH VIX/VIXW and SPX/SPXW LMM Incentive Programs in meeting the heightened quoting standards (in order to receive the rebate offered under the respective incentive program) by increasing their quoting activity and posting tighter spreads and more aggressive quotes in VIX options and SPX/SPXW options, as applicable. An increase in quoting activity and tighter quotes tends to signal additional corresponding increase in order flow from other market participants, which benefits all investors by deepening the Exchange's liquidity pool, potentially providing even greater execution incentives and opportunities, offering additional flexibility for all investors to enjoy cost savings, supporting the quality of price discovery, promoting market transparency and improving investor protection.
The Exchange believes that by adopting different sets of quoting standards that are applicable depending on the VIX Index value at the prior close (
Additionally, and as described above, the Exchange believes that the proposed rule change to adopt generally tighter widths and larger quote sizes for VIX options and SPX/SPXW options in the expiration categories that are nearer in term and widen the widths and reduce the quote sizes as the expiration categories become longer in term is reasonably designed to provide more challenging opportunities, thus greater quoting incentive, in the expiration categories that are nearer in term while easing the width and size requirements as the expiration categories become longer in term. In addition to this, the Exchange believes that by providing a set of heightened quoting standards for VIX options that provide for tighter width and large size standards than the proposed set of basic quoting standards for VIX options, the proposed rule change offers LMMs appointed to the GTH VIX/VIXW LMM Incentive Program a more challenging opportunity, thus further incentive, to strive to meet the heightened quoting standards in VIX options in order to receive the current additional rebate on their VIX/VIXW orders in RTH. The Exchange also notes that the proposed basic quoting standards for VIX options and proposed heightened quoting standards for VIX and for SPX/SPXW options do not represent a significant departure from each of the program's current quote width and size standards and remain generally aligned with the current range of widths and sizes; they are merely being tailored to better reflect market characteristics in VIX options and in SPX/SPX options as they each relate to volatility in the VIX Index. The Exchange further notes that quote widths and sizes typical in VIX options differ from that in SPX/SPXW options, therefore, the proposed heightened quoting requirements reflect quote widths and sizes that the Exchange believes aligns with the market characteristics specific to each.
In addition to this, the Exchange believes that it is reasonable to amend the number of days to expiration that comprise certain expiry categories in the GTH VIX/VIXW and SPX/SPXW LMM Incentive Programs as these updates are reasonably designed to make it easier for the LMMs appointed to the respective incentive programs to satisfy the heightened quoting standards for options expiring a certain number of days out, by better aligning the applicable category of heightened quoting standards with the market characteristics and level of demand for options that expire a certain number of days out.
The Exchange believes that it is reasonable to amend the monthly rebate amounts applicable to the GTH SPX/SPXW Incentive Program. The Exchange believes that the proposed increased rebate amount (from $30,000 to $35,000) for SPXW options is reasonably designed to continue to incentivize an appointed LMM to meet the applicable quoting standards for SPXW options, thereby providing liquid and active markets, which facilitates tighter spreads, increased trading opportunities, and overall enhanced market quality to the benefit of all market participants. The Exchange also believes that it is reasonable to shift the total rebate amount ($50,000) allocated across SPX and SPXW options under the program by offsetting the slightly increased rebate amount for SPXW ($35,000) options with a slightly decreased rebated amount for SPX options ($15,000) because the Exchange has observed a recent increase in demand in SPWX options and therefore wishes to further incentive LMM appointed to the program to provide significant liquidity in SPXW options by meeting the heightened quoting standards, while continuing to allocate the same total rebate amount across SPX and SPXW.
The Exchange believes that the proposed changes to the LMM Incentive Programs are equitable and not unfairly discriminatory. The Exchange believes that it is equitable and not unfairly discriminatory to adopt new quoting standards and to update the number of days to expiration for certain expiry
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes the proposed rule change does impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Particularly, the proposed changes to existing LMM Incentive Programs will apply to all LMMs appointed to the applicable program classes (
The Exchange believes the proposed rule change does not impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act as the LMM Incentive Programs apply only to transactions in products exclusively listed on Cboe Options. Additionally, as noted above, the incentive programs are designed to attract additional order flow to the Exchange, wherein greater liquidity benefits all market participants by providing more trading opportunities, tighter spreads, and added market transparency and price discovery, and signals to other market participants to direct their order flow to those markets, thereby contributing to robust levels of liquidity. The Exchange notes it operates in a highly competitive market. In addition to Cboe Options, TPHs have numerous alternative venues that they may participate on and director their order flow, including 15 other options exchanges, as well as off-exchange venues, where competitive products are available for trading. Based on publicly available information, no single options exchange has more than 16% of the market share of executed volume of options trades.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send 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 July 1, 2021, MIAX PEARL, LLC (“MIAX Pearl” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (“Commission”) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget for extension and approval.
The federal securities laws generally prohibit an issuer, underwriter, or dealer from delivering a security for sale unless a prospectus meeting certain requirements accompanies or precedes the security. Rule 154 (17 CFR 230.154) under the Securities Act of 1933 (15 U.S.C. 77a) (the “Securities Act”) permits, under certain circumstances, delivery of a single prospectus to investors who purchase securities from the same issuer and share the same address (“householding”) to satisfy the applicable prospectus delivery requirements.
Under rule 154, a prospectus is considered delivered to all investors at a shared address, for purposes of the federal securities laws, if the person relying on the rule delivers the prospectus to the shared address, addresses the prospectus to the investors as a group or to each of the investors individually, and the investors consent to the delivery of a single prospectus. The rule applies to prospectuses and prospectus supplements. Currently, the rule
The rule allows issuers, underwriters, or dealers to household prospectuses if certain conditions are met. Among the conditions with which a person relying on the rule must comply are providing notice to each investor that only one prospectus will be sent to the household and, in the case of issuers that are mutual funds and any series thereof, providing to each investor who consents to householding an annual explanation of the right to revoke consent to the delivery of a single prospectus to multiple investors sharing an address. The purpose of the notice and annual explanation requirements of the rule is to ensure that investors who wish to receive individual copies of prospectuses are able to do so.
Although rule 154 is not limited to mutual funds, the Commission believes that it is used mainly by mutual funds and by broker-dealers that deliver prospectuses for mutual funds. The Commission is unable to estimate the number of issuers other than mutual funds that rely on the rule.
The Commission estimates that, as of June 30, 2021, there are approximately 13,182 mutual fund series registered on Form N-1A, approximately 1,279 of which are directly sold and therefore deliver their own prospectuses. Of these, the Commission estimates that approximately half (640 mutual fund series): (i) Do not send the implied consent notice requirement because they obtain affirmative written consent to household prospectuses in the fund's account opening documentation; or (ii) do not take advantage of the householding provision because of electronic delivery options which lessen the economic and operational benefits of rule 154 when compared with the costs of compliance. Therefore, the Commission estimates that each of the 640 directly sold mutual fund series will spend an average of 20 hours per year complying with the notice requirement of the rule, for a total of 12,800 burden hours. In addition, of the approximately 1,279 mutual fund series that are directly sold, the Commission estimates that approximately 75% (or 960) will each spend 1 hour complying with the annual explanation of the right to revoke requirement of the rule, for a total of 960 hours.
The Commission estimates that, as of December 31, 2020, there were approximately 462 broker-dealers that have customer accounts with mutual funds, and therefore may be required to deliver mutual fund prospectuses. The Commission estimates that each affected broker-dealer will spend, on average, 20 hours complying with the notice requirement of the rule, for a total of 9,240 hours. In addition, each broker-dealer will also spend one hour complying with the annual explanation of the right to revoke requirement, for a total of 462 hours. Therefore, the total number of respondents for rule 154 is 1,422 (960
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms. 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.
Written comments are invited on: (a) Whether the collections of information are necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burden of the collections of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collections of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, C/O Cynthia Roscoe 100 F Street NE, Washington, DC 20549; or send an email to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe BZX Exchange, Inc. (“BZX” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposal to extend the pilot related to the market-wide circuit breaker in Rule 11.18. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
BZX Rules 11.18(a) through (d), (f) and (g) describe the methodology for determining when to halt trading in all stocks due to extraordinary market volatility,
The market-wide circuit breaker under Rule 11.18 provides an important, automatic mechanism that is invoked to promote stability and investor confidence during a period of significant stress when securities markets experience extreme broad-based declines. All U.S. equity exchanges and FINRA adopted uniform rules on a pilot basis relating to market-wide circuit breakers in 2012 (“MWCB Rules”), which are designed to slow the effects of extreme price movement through coordinated trading halts across securities markets when severe price declines reach levels that may exhaust market liquidity.
Pursuant to Rule 11.18, a market-wide trading halt will be triggered if the S&P 500 Index declines in price by specified percentages from the prior day's closing price of that index. Currently, the triggers are set at three circuit breaker thresholds: 7% (Level 1), 13% (Level 2), and 20% (Level 3). A market decline that triggers a Level 1 or Level 2 halt after 9:30 a.m. ET and before 3:25 p.m. ET would halt market-wide trading for 15 minutes, while a similar market decline at or after 3:25 p.m. ET would not halt market-wide trading. A market decline that triggers a Level 3 halt, at any time during the trading day, would halt market-wide trading for the remainder of the trading day.
In the Spring of 2020, at the outset of the worldwide COVID-19 pandemic, U.S. equities markets experienced four MWCB Level 1 halts, on March 9, 12, 16, and 18, 2020. In each instance, the markets halted as intended upon a 7% drop in the S&P 500 Index, and resumed as intended 15 minutes later.
In response to these events, the previously-convened MWCB Taskforce (“Taskforce”) reviewed the March 2020 halts and considered whether any immediate changes to the MWCB mechanism should be made. The Taskforce, consisting of representatives from equities exchanges, futures exchanges, FINRA, broker-dealers, and other market participants, had been assembled in early 2020 to consider more generally potential changes to the MWCB mechanism. The Taskforce held ten meetings in the Spring and Summer of 2020 that were attended by Commission staff to consider, among other things: (1) Whether to retain the S&P 500 Index as the standard for measuring market declines; (2) whether halts that occur shortly after the 9:30 a.m. market open cause more harm than good; and (3) what additional testing of the MWCB mechanism should be done.
After considering data and anecdotal reports of market participants' experiences during the March 2020 MWCB events, the Taskforce did not recommend immediate changes be made to the use of the S&P 500 Index as the reference price against which market declines are measured, or to the current MWCB mechanism which permits halts even shortly after the 9:30 a.m. market open. The Taskforce recommended creating a process for a backup reference price in the event that the S&P 500 Index becomes unavailable, and enhancing functional MWCB testing. The Taskforce also asked CME to consider modifying its rules to enter into a limit-down state in the futures pre-market after a 7% decline instead of 5%.
On September 17, 2020, the Director of the Division of Trading and Markets requested that the equities exchanges and FINRA prepare a more complete study of the design and operation of the MWCB mechanism and the LULD Plan during the period of volatility in the Spring of 2020. In response to the request, the SROs created a MWCB “Working Group” composed of SRO representatives and industry advisers that included members of the advisory committees to both the LULD Plan and the NMS Plans governing the collection, consolidation, and dissemination of
The SROs have since worked on a proposed a rule change to make the Pilot Rules permanent, consistent with the Working Group's recommendations. New York Stock Exchange (“NYSE”) filed such proposed rule change on July 16, 2021.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning when and how to halt trading in all stocks as a result of extraordinary market volatility. Based on the foregoing, the Exchange believes the benefits to market participants from the MWCB under Rule 11.18 should continue on a pilot basis because the MWCB will promote fair and orderly markets, and protect investors and the public interest.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act because the proposal would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Exchange and the other SROs finalize their proposals to make the Pilot Rules permanent. Further, the Exchange understands that FINRA and other national securities exchanges will file proposals to extend their rules regarding the market-wide circuit breaker pilot following Commission approval of the NYSE proposal. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No written comments were either solicited or received on the proposed rule change.
Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, 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.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to extend the current pilot program related to Rule 7.10E (Clearly Erroneous Executions) to the close of business on April 20, 2022. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of the proposed rule change is to extend the current pilot program related to Rule 7.10E (Clearly Erroneous Executions) to the close of business on April 20, 2022. The pilot program is currently due to expire on October 20, 2021.
On September 10, 2010, the Commission approved, on a pilot basis, changes to Rule 7.10E that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set forth in the rule.
These changes were originally scheduled to operate for a pilot period to coincide with the pilot period for the Plan to Address Extraordinary Market Volatility (the “Limit Up-Limit Down Plan” or “LULD Plan”),
The Exchange now proposes to amend Rule 7.10E to extend the pilot's effectiveness for a further six months until the close of business on April 20, 2022. If the pilot period is not either extended, replaced or approved as permanent, the prior versions of paragraphs (c), (e)(2), (f), and (g) shall be in effect, and the provisions of paragraphs (i) through (k) shall be null and void.
The Exchange does not propose any additional changes to Rule 7.10E. Extending the effectiveness of Rule 7.10E for an additional six months will provide the Exchange and other self-regulatory organizations additional time to consider whether further amendments to the clearly erroneous execution rules are appropriate.
The Exchange believes the proposed rule change is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposal would ensure the continued, uninterrupted operation of harmonized clearly erroneous execution rules across the U.S. equities markets while the Exchange and other self-regulatory organizations consider whether further amendments to these rules are appropriate. The Exchange understands that the other national securities exchanges and FINRA will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe BYX Exchange, Inc. (“BYX” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposed rule change to extend the current pilot program related to BYX Rule 11.17, Clearly Erroneous Executions, to the close of business on April 20, 2022. 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 (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to extend the effectiveness of the Exchange's current rule applicable to Clearly Erroneous Executions to the close of business on April 20, 2022. Portions of Rule 11.17, explained in further detail below, are currently operating as a pilot program set to expire on October 20, 2021.
On September 10, 2010, the Commission approved, on a pilot basis, changes to BYX Rule 11.17 that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set
On December 26, 2018, the Commission published the proposed Eighteenth Amendment
The Exchange now proposes to amend BYX Rule 11.17 to extend the pilot's effectiveness to the close of business on April 20, 2022. The Exchange understands that the other national securities exchanges and Financial Industry Regulatory Authority (“FINRA”) have filed or plan to file similar proposals to extend their respective clearly erroneous execution pilot programs, the substance of which are identical to BYX Rule 11.17.
The Exchange does not propose any additional changes to BYX Rule 11.17. The Exchange believes the benefits to market participants from the more objective clearly erroneous executions rule should continue on a limited six month pilot basis. As the Plan was approved by the Commission to operate on a permanent, rather than pilot, basis the Exchange intends to assess whether additional changes should also be made to the operation of the clearly erroneous execution rules. Extending the effectiveness of BYX Rule 11.17 for an additional six months should provide the Exchange and other national securities exchanges additional time to consider further amendments, if any, to the clearly erroneous execution rules.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that extending the clearly erroneous execution pilot under BYX Rule 11.17 for an additional six months would help assure that the determination of whether a clearly erroneous trade has occurred will be based on clear and objective criteria, and that the resolution of the incident will occur promptly through a transparent process. The proposed rule change would also help assure consistent results in handling erroneous trades across the U.S. equities markets, thus furthering fair and orderly markets, the protection of investors and the public interest. Based on the foregoing, the Exchange believes the amended clearly erroneous executions rule should continue to be in effect on a pilot basis while the Exchange and the other national securities exchanges consider and develop a permanent proposal for clearly erroneous execution reviews.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange understands that FINRA and other national securities exchanges have or will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No comments were solicited or received on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe EDGX Exchange, Inc. (“EDGX” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposal to extend the pilot related to the market-wide circuit breaker in Rule 11.16. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
EDGX Rules 11.16(a) through (d), (f) and (g) describe the methodology for determining when to halt trading in all stocks due to extraordinary market volatility,
The market-wide circuit breaker under Rule 11.16 provides an important, automatic mechanism that is invoked to promote stability and investor confidence during a period of significant stress when securities markets experience extreme broad-based declines. All U.S. equity exchanges and FINRA adopted uniform rules on a pilot basis relating to market-wide circuit breakers in 2012 (“MWCB Rules”), which are designed to slow the effects of extreme price movement through coordinated trading halts across securities markets when severe price declines reach levels that may exhaust market liquidity.
Pursuant to Rule 11.16, a market-wide trading halt will be triggered if the S&P 500 Index declines in price by specified percentages from the prior day's closing price of that index. Currently, the triggers are set at three circuit breaker thresholds: 7% (Level 1), 13% (Level 2), and 20% (Level 3). A market decline that triggers a Level 1 or Level 2 halt after 9:30 a.m. ET and before 3:25 p.m. ET would halt market-wide trading for 15 minutes, while a similar market decline at or after 3:25 p.m. ET would not halt market-wide trading. A market decline that triggers a Level 3 halt, at any time during the trading day, would halt market-wide trading for the remainder of the trading day.
In the Spring of 2020, at the outset of the worldwide COVID-19 pandemic, U.S. equities markets experienced four MWCB Level 1 halts, on March 9, 12, 16, and 18, 2020. In each instance, the markets halted as intended upon a 7% drop in the S&P 500 Index, and resumed as intended 15 minutes later.
In response to these events, the previously-convened MWCB Taskforce (“Taskforce”) reviewed the March 2020 halts and considered whether any immediate changes to the MWCB mechanism should be made. The Taskforce, consisting of representatives from equities exchanges, futures exchanges, FINRA, broker-dealers, and other market participants, had been assembled in early 2020 to consider more generally potential changes to the MWCB mechanism. The Taskforce held ten meetings in the Spring and Summer of 2020 that were attended by Commission staff to consider, among other things: (1) Whether to retain the S&P 500 Index as the standard for measuring market declines; (2) whether halts that occur shortly after the 9:30 a.m. market open cause more harm than good; and (3) what additional testing of the MWCB mechanism should be done.
After considering data and anecdotal reports of market participants' experiences during the March 2020 MWCB events, the Taskforce did not recommend immediate changes be made to the use of the S&P 500 Index as the reference price against which market declines are measured, or to the current MWCB mechanism which permits halts even shortly after the 9:30 a.m. market open. The Taskforce recommended creating a process for a backup reference price in the event that the S&P 500 Index becomes unavailable, and enhancing functional MWCB testing. The Taskforce also asked CME to consider modifying its rules to enter into a limit-down state in the futures pre-market after a 7% decline instead of 5%.
On September 17, 2020, the Director of the Division of Trading and Markets requested that the equities exchanges and FINRA prepare a more complete study of the design and operation of the MWCB mechanism and the LULD Plan during the period of volatility in the Spring of 2020. In response to the request, the SROs created a MWCB “Working Group” composed of SRO representatives and industry advisers that included members of the advisory committees to both the LULD Plan and the NMS Plans governing the collection, consolidation, and dissemination of last-sale transaction reports and quotations in NMS Stocks. The Working Group met regularly from September 2020 through March 2021 to consider the Commission's request, review data, and compile its study. The Working Group's efforts in this respect incorporated and built on the work of an MWCB Task Force. The Working Group submitted its study to the Commission on March 31, 2021 (the “Study”).
The SROs have since worked on a proposed a rule change to make the Pilot Rules permanent, consistent with the Working Group's recommendations. New York Stock Exchange (“NYSE”) filed such proposed rule change on July 16, 2021.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning when and how to halt trading in all stocks as a result of extraordinary market volatility. Based on the foregoing, the Exchange believes the benefits to market participants from the MWCB under Rule 11.16 should continue on a pilot basis because the MWCB will promote fair and orderly markets, and protect investors and the public interest.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act because the proposal would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Exchange and the other SROs finalize their proposals to make the Pilot Rules permanent. Further, the Exchange understands that FINRA and other national securities exchanges will file proposals to extend their rules regarding the market-wide circuit breaker pilot following Commission approval of the NYSE proposal. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No written comments were either solicited or received on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe EDGA Exchange, Inc. (“EDGA” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposed rule change to extend the current pilot program related to EDGA Rule 11.15, Clearly Erroneous Executions, to the close of business on April 20, 2022. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to extend the effectiveness of the Exchange's current rule applicable to Clearly Erroneous Executions to the close of business on October 20, 2021. Portions of Rule 11.15, explained in further detail below, are currently operating as a pilot program set to expire on October 20, 2021.
On September 10, 2010, the Commission approved, on a pilot basis, changes to EDGA Rule 11.15 that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set forth in the rule.
On December 26, 2018, the Commission published the proposed Eighteenth Amendment
The Exchange now proposes to amend EDGA Rule 11.15 to extend the pilot's effectiveness to the close of business April 20, 2022. The Exchange understands that the other national securities exchanges and Financial Industry Regulatory Authority (“FINRA”) have filed or plan to file similar proposals to extend their respective clearly erroneous execution pilot programs, the substance of which are identical to EDGA Rule 11.15.
The Exchange does not propose any additional changes to EDGA Rule 11.15. The Exchange believes the benefits to market participants from the more objective clearly erroneous executions rule should continue on a limited six month pilot basis. As the Plan was approved by the Commission to operate on a permanent, rather than pilot, basis the Exchange intends to assess whether additional changes should also be made to the operation of the clearly erroneous execution rules. Extending the effectiveness of EDGA Rule 11.15 for an additional six months should provide the Exchange and other national securities exchanges additional time to consider further amendments, if any, to the clearly erroneous execution rules.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that extending the clearly erroneous execution pilot under EDGA Rule 11.15 for an additional six months would help assure that the determination of whether a clearly erroneous trade has occurred will be based on clear and objective criteria, and that the resolution of the incident will occur promptly through a transparent process. The proposed rule change would also help assure consistent results in handling erroneous trades across the U.S. equities markets, thus furthering fair and orderly markets, the protection of investors and the public interest. Based on the foregoing, the Exchange believes the amended clearly erroneous executions rule should continue to be in effect on a pilot basis while the Exchange and the other national securities exchanges consider and develop a permanent proposal for clearly erroneous execution reviews.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange understands that FINRA and other national securities exchanges have or will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No comments were solicited or received on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to extend the current pilot program related to Rule 7.10 (Clearly Erroneous Executions) to the close of business on April 20, 2022. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of the proposed rule change is to extend the current pilot program related to Rule 7.10 (Clearly Erroneous Executions) to the close of business on April 20, 2022. The pilot program is currently due to expire on October 20, 2021.
On September 10, 2010, the Commission approved, on a pilot basis, changes to Rule 128 (Clearly Erroneous Executions) that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set forth in the rule.
These changes were originally scheduled to operate for a pilot period to coincide with the pilot period for the Plan to Address Extraordinary Market Volatility (the “Limit Up-Limit Down Plan” or “LULD Plan”),
The Exchange now proposes to amend Rule 7.10 to extend the pilot program's effectiveness for a further six months until the close of business on April 20, 2022. If the pilot period is not either extended, replaced or approved as permanent, the prior versions of paragraphs (c), (e)(2), (f), and (g) shall be in effect, and the provisions of paragraphs (i) through (k) shall be null and void.
The Exchange does not propose any additional changes to Rule 7.10. Extending the effectiveness of Rule 7.10 for an additional six months will provide the Exchange and other self-regulatory organizations additional time to consider whether further amendments to the clearly erroneous execution rules are appropriate.
The Exchange believes the proposed rule change is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposal would ensure the continued, uninterrupted operation of harmonized clearly erroneous execution rules across
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is filing a proposal to amend the MIAX Options Fee Schedule (the “Fee Schedule”) to adjust the Options Regulatory Fee (“ORF”).
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Currently, the Exchange assesses ORF in the amount of $0.0029 per contract side. The Exchange proposes to reduce the amount of ORF from $0.0029 per contract side to $0.0019 per contract side in order to help ensure that revenue collected from the ORF, in combination with other regulatory fees and fines, does not exceed the Exchange's total regulatory costs. The Exchange's proposed change to the ORF should balance the Exchange's regulatory revenue against the anticipated regulatory costs. The Exchange initially filed this proposal on July 30, 2021 (SR-MIAX-2021-36) and withdrew such filing on August 12, 2021. The Exchange refiled this proposal on August 12, 2021 (SR-MIAX-2021-38) and withdrew such filing on October 7, 2021. The Exchange proposes to implement this fee change effective October 7, 2021.
Currently, the Exchange assesses the per-contract ORF to each Member
To illustrate how the Exchange assesses and collects ORF, the Exchange provides the following set of examples. For a transaction that is executed on the Exchange and the ORF is assessed, if there is no change to the clearing account of the original transaction, then the ORF is collected from the Member that is the executing clearing firm for the transaction (the Exchange notes that, for purposes of the Fee Schedule, when there is no change to the clearing account of the original transaction, the executing clearing firm is deemed to be the ultimate clearing firm). If there is a change to the clearing account of the original transaction (
As a practical matter, when a transaction that is subject to the ORF is not executed on the Exchange, the Exchange lacks the information necessary to identify the order-entering member for that transaction. There are a multitude of order-entering market participants throughout the industry, and such participants can make changes to the market centers to which they connect, including dropping their connection to one market center and establishing themselves as participants on another. For these reasons, it is not possible for the Exchange to identify, and thus assess fees such as ORF, on order-entering participants on away markets on a given trading day. Clearing members, however, are distinguished from order-entering participants because they remain identified to the Exchange on information the Exchange receives from OCC regardless of the identity of the order-entering participant, their location, and the market center on which they execute transactions. Therefore, the Exchange believes it is more efficient for the operation of the Exchange and for the marketplace as a whole to collect the ORF from clearing members.
The Exchange monitors the amount of revenue collected from the ORF to ensure that it, in combination with other regulatory fees and fines, does not exceed regulatory costs. In determining whether an expense is considered a regulatory cost, the Exchange reviews all costs and makes determinations if there is a nexus between the expense and a regulatory function. The Exchange notes that fines collected by the Exchange in connection with a disciplinary matter offset ORF.
As discussed below, the Exchange believes it is appropriate to charge the ORF only to transactions that clear as customer at the OCC. The Exchange believes that its broad regulatory responsibilities with respect to a Member's activities supports applying
Revenue generated from ORF, when combined with all of the Exchange's other regulatory fees and fines, is designed to recover a material portion of the regulatory costs to the Exchange of the supervision and regulation of Members' customer options business including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities. Regulatory costs include direct regulatory expenses and certain indirect expenses in support of the regulatory function. The direct expenses include in-house and third party service provider costs to support the day-to-day regulatory work such as surveillances, investigations and examinations. The indirect expenses include support from such areas as the Office of the General Counsel, technology, and internal audit. Indirect expenses are estimated to be approximately 48% of the total regulatory costs for 2021. Thus, direct expenses are estimated to be approximately 52% of total regulatory costs for 2021. The Exchange notes that its estimated direct and indirect expense percentages are in the range and similar to those at other options exchanges.
The ORF is designed to recover a material portion of the costs to the Exchange of the supervision and regulation of its members, including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities.
Based on the Exchange's most recent review, the Exchange proposes to reduce the amount of ORF that will be collected by the Exchange from $0.0029 per contract side to $0.0019 per contract side. The Exchange issued an Options Regulatory Fee Announcement on July 2, 2021, indicating the proposed rate change for August 1, 2021.
The proposed decrease is based on recent options volumes, which included an increase in retail investors. With respect to options volume, the Exchange, and the options industry as a whole, experienced a significant increase between 2020 and 2021. For example, total options contract volumes in April, May and June 2021 were 29.7%, 32.7% and 25.6% higher than the total options contract volumes in April, May and June 2020, respectively.
There can be no assurance that the Exchange's final costs for 2021 will not differ materially from these expectations, nor can the Exchange predict with certainty whether options volume will remain at the current level going forward. The Exchange notes however, that when combined with regulatory fees and fines, the revenue being generated utilizing the current ORF rate may result in revenue that will run in excess of the Exchange's estimated regulatory costs for the year.
The Exchange will continue to monitor the amount of revenue collected from the ORF to ensure that it, in combination with its other regulatory fees and fines, does not exceed the Exchange's total regulatory costs. The Exchange will continue to monitor MIAX regulatory costs and revenues at a minimum on a semi-annual basis. If the Exchange determines regulatory revenues exceed or are insufficient to cover a material portion of its regulatory costs, the Exchange will adjust the ORF by submitting a fee change filing to the Commission.
In connection with this filing, the Exchange notes that its affiliates, MIAX Pearl and MIAX Emerald, will also be adjusting the ORF fees that each of those exchanges charge.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes the proposed fee change is reasonable because customer transactions will be subject to a lower ORF fee than the current rate. Moreover, the proposed reduction is necessary in order for the Exchange to not collect revenue in excess of its anticipated regulatory costs, in combination with other regulatory fees and fines, which is consistent with the Exchange's practices.
The ORF is designed to recover a material portion of the costs of supervising and regulating Members' customer options business including performing routine surveillances and investigations, as well as policy, rulemaking, interpretive and
The Exchange believes that continuing to limit changes to the ORF to twice a year on specific dates with advance notice is reasonable because it gives participants certainty on the timing of changes, if any, and better enables them to properly account for ORF charges among their customers. The Exchange believes that continuing to limit changes to the ORF to twice a year on specific dates is equitable and not unfairly discriminatory because it will apply in the same manner to all Members that are subject to the ORF and provide them with additional advance notice of changes to that fee.
The Exchange believes that collecting the ORF from non-Members when such non-Members ultimately clear the transaction (that is, when the non-Member is the “ultimate clearing firm” for a transaction in which a Member was assessed the ORF) is an equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities. The Exchange notes that there is a material distinction between “assessing” the ORF and “collecting” the ORF. The ORF is only assessed to a Member with respect to a particular transaction in which it is either the executing clearing firm or ultimate clearing firm. The Exchange does not assess the ORF to non-Members. Once, however, the ORF is assessed to a Member for a particular transaction, the ORF may be collected from the Member or a non-Member, depending on how the transaction is cleared at OCC. If there was no change to the clearing account of the original transaction, the ORF would be collected from the Member. If there was a change to the clearing account of the original transaction and a non-Member becomes the ultimate clearing firm for that transaction, then the ORF will be collected from that non-Member. The Exchange believes that this collection practice continues to be reasonable and appropriate, and was originally instituted for the benefit of clearing firms that desired to have the ORF be collected from the clearing firm that ultimately clears the transaction.
The Exchange designed the ORF so that revenue generated from the ORF, in combination with its other regulatory fees and fines, does not exceed regulatory costs, which is consistent with the view of the Commission that regulatory fees be used for regulatory purposes and not to support the Exchange's business operations. As discussed above, however, after review of its regulatory costs and regulatory revenues, which includes revenues from ORF and other regulatory fees and fines, the Exchange determined that absent a reduction in ORF, it may be collecting revenue in excess of its regulatory costs. Indeed, the Exchange notes that when taking into account the recent options volume, which included an increase in customer options transactions, it estimates the ORF will generate revenues that may cover more than the approximated Exchange's projected regulatory costs. Moreover, when coupled with the Exchange's other regulatory fees and revenues, the Exchange estimates ORF to generate over 100% of the Exchange's projected regulatory costs. As such, the Exchange believes it is reasonable and appropriate to decrease the ORF amount from $0.0029 to $0.0019 per contract side.
The Exchange also believes the proposed fee change is equitable and not unfairly discriminatory in that it is charged to all Members on all their transactions that clear in the customer range at the OCC, with an exception.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. This proposal does not create an unnecessary or inappropriate intra-market burden on competition because the ORF applies to all customer activity, thereby raising regulatory revenue to offset regulatory expenses. It also supplements the regulatory revenue derived from non-customer activity. The Exchange notes, however, the proposed change is not designed to address any competitive issues. Indeed, this proposal does not create an unnecessary or inappropriate inter-market burden on competition because it is a regulatory fee that supports regulation in furtherance of the purposes of the Act. The Exchange is
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File No. SR-MIAX-2021-48. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website (
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 (the “Act”),
The Exchange is filing a proposal to amend the MIAX Pearl Options Fee Schedule (the “Fee Schedule”) to adjust the Options Regulatory Fee (“ORF”).
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Currently, the Exchange assesses ORF in the amount of $0.0028 per contract side. The Exchange proposes to reduce the amount of ORF from $0.0028 per contract side to $0.0018 per contract side in order to help ensure that revenue collected from the ORF, in combination with other regulatory fees and fines, does not exceed the Exchange's total regulatory costs. The Exchange's proposed change to the ORF should balance the Exchange's regulatory revenue against the anticipated regulatory costs. The Exchange initially filed this proposal on July 30, 2021 (SR-PEARL-2021-37) and withdrew such filing on August 12, 2021. The Exchange refiled this proposal on August 12, 2021 (SR-PEARL-2021-38) and withdrew such filing on October 7, 2021. The Exchange proposes to implement this fee change effective October 7, 2021.
Currently, the Exchange assesses the per-contract ORF to each Member
To illustrate how the Exchange assesses and collects ORF, the Exchange provides the following set of examples. For a transaction that is executed on the Exchange and the ORF is assessed, if there is no change to the clearing account of the original transaction, then the ORF is collected from the Member that is the executing clearing firm for the transaction (the Exchange notes that, for purposes of the Fee Schedule, when there is no change to the clearing account of the original transaction, the executing clearing firm is deemed to be the ultimate clearing firm). If there is a change to the clearing account of the original transaction (
As a practical matter, when a transaction that is subject to the ORF is not executed on the Exchange, the Exchange lacks the information necessary to identify the order-entering member for that transaction. There are a multitude of order-entering market participants throughout the industry, and such participants can make changes to the market centers to which they connect, including dropping their connection to one market center and establishing themselves as participants on another. For these reasons, it is not possible for the Exchange to identify, and thus assess fees such as ORF, on order-entering participants on away markets on a given trading day. Clearing members, however, are distinguished from order-entering participants because they remain identified to the Exchange on information the Exchange receives from OCC regardless of the identity of the order-entering participant, their location, and the market center on which they execute transactions. Therefore, the Exchange believes it is more efficient for the operation of the Exchange and for the marketplace as a whole to collect the ORF from clearing members.
The Exchange monitors the amount of revenue collected from the ORF to ensure that it, in combination with other regulatory fees and fines, does not exceed regulatory costs. In determining whether an expense is considered a regulatory cost, the Exchange reviews all costs and makes determinations if there is a nexus between the expense and a regulatory function. The Exchange notes that fines collected by the Exchange in connection with a disciplinary matter offset ORF.
As discussed below, the Exchange believes it is appropriate to charge the ORF only to transactions that clear as customer at the OCC. The Exchange believes that its broad regulatory responsibilities with respect to a Member's activities supports applying the ORF to transactions cleared but not executed by a Member. The Exchange's regulatory responsibilities are the same regardless of whether a Member enters a transaction or clears a transaction executed on its behalf. The Exchange regularly reviews all such activities, including performing surveillance for position limit violations, manipulation, front-running, contrary exercise advice violations and insider trading. These activities span across multiple exchanges.
Revenue generated from ORF, when combined with all of the Exchange's other regulatory fees and fines, is designed to recover a material portion of the regulatory costs to the Exchange of the supervision and regulation of Members' customer options business including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities. Regulatory costs include direct regulatory expenses and certain indirect expenses in support of the regulatory function. The direct expenses include in-house and third party service provider costs to support the day-to-day regulatory work such as surveillances, investigations and examinations. The indirect expenses include support from such areas as the Office of the General Counsel, technology, and internal audit. Indirect expenses are estimated to be approximately 50% of the total regulatory costs for 2021. Thus, direct expenses are estimated to be approximately 50% of total regulatory costs for 2021. The Exchange notes that its estimated direct and indirect expense percentages are in the range and similar to those at other options exchanges.
The ORF is designed to recover a material portion of the costs to the Exchange of the supervision and
Based on the Exchange's most recent review, the Exchange proposes to reduce the amount of ORF that will be collected by the Exchange from $0.0028 per contract side to $0.0018 per contract side. The Exchange issued an Options Regulatory Fee Announcement on July 2, 2021, indicating the proposed rate change for August 1, 2021.
The proposed decrease is based on recent options volumes, which included an increase in retail investors. With respect to options volume, the Exchange, and the options industry as a whole, experienced a significant increase between 2020 and 2021. For example, total options contract volumes in April, May and June 2021 were 29.7%, 32.7% and 25.6% higher than the total options contract volumes in April, May and June 2020, respectively.
There can be no assurance that the Exchange's final costs for 2021 will not differ materially from these expectations, nor can the Exchange predict with certainty whether options volume will remain at the current level going forward. The Exchange notes however, that when combined with regulatory fees and fines, the revenue being generated utilizing the current ORF rate may result in revenue that will run in excess of the Exchange's estimated regulatory costs for the year.
The Exchange will continue to monitor the amount of revenue collected from the ORF to ensure that it, in combination with its other regulatory fees and fines, does not exceed the Exchange's total regulatory costs. The Exchange will continue to monitor MIAX Pearl regulatory costs and revenues at a minimum on a semi-annual basis. If the Exchange determines regulatory revenues exceed or are insufficient to cover a material portion of its regulatory costs, the Exchange will adjust the ORF by submitting a fee change filing to the Commission.
In connection with this filing, the Exchange notes that its affiliates, MIAX and MIAX Emerald, will also be adjusting the ORF fees that each of those exchanges charge.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes the proposed fee change is reasonable because customer transactions will be subject to a lower ORF fee than the current rate. Moreover, the proposed reduction is necessary in order for the Exchange to not collect revenue in excess of its anticipated regulatory costs, in combination with other regulatory fees and fines, which is consistent with the Exchange's practices.
The ORF is designed to recover a material portion of the costs of supervising and regulating Members' customer options business including performing routine surveillances and investigations, as well as policy, rulemaking, interpretive and enforcement activities. The Exchange will monitor the amount of revenue collected from the ORF to ensure that it, in combination with its other regulatory fees and fines, does not exceed the Exchange's total regulatory costs. The Exchange has designed the ORF to generate revenues that, when combined with all of the Exchange's other regulatory fees, will be less than or equal to the Exchange's regulatory costs, which is consistent with the Commission's view that regulatory fees be used for regulatory purposes and not to support the Exchange's business side. In this regard, the Exchange believes that the proposed decrease to the fee is reasonable.
The Exchange believes that continuing to limit changes to the ORF to twice a year on specific dates with advance notice is reasonable because it gives participants certainty on the timing of changes, if any, and better enables them to properly account for ORF charges among their customers. The Exchange believes that continuing to limit changes to the ORF to twice a year on specific dates is equitable and not unfairly discriminatory because it will apply in the same manner to all Members that are subject to the ORF and provide them with additional advance notice of changes to that fee.
The Exchange believes that collecting the ORF from non-Members when such non-Members ultimately clear the transaction (that is, when the non-Member is the “ultimate clearing firm” for a transaction in which a Member was assessed the ORF) is an equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities. The Exchange notes that there is a material distinction between “assessing” the ORF and “collecting” the ORF. The ORF is only assessed to a Member with respect to a particular transaction in which it is either the executing clearing firm or ultimate clearing firm. The Exchange does not assess the ORF to non-Members. Once, however, the ORF is assessed to a Member for a particular transaction, the
The Exchange designed the ORF so that revenue generated from the ORF, in combination with its other regulatory fees and fines, does not exceed regulatory costs, which is consistent with the view of the Commission that regulatory fees be used for regulatory purposes and not to support the Exchange's business operations. As discussed above, however, after review of its regulatory costs and regulatory revenues, which includes revenues from ORF and other regulatory fees and fines, the Exchange determined that absent a reduction in ORF, it may be collecting revenue in excess of its regulatory costs. Indeed, the Exchange notes that when taking into account the recent options volume, which included an increase in customer options transactions, it estimates the ORF will generate revenues that may cover more than the approximated Exchange's projected regulatory costs. Moreover, when coupled with the Exchange's other regulatory fees and revenues, the Exchange estimates ORF to generate over 100% of the Exchange's projected regulatory costs. As such, the Exchange believes it is reasonable and appropriate to decrease the ORF amount from $0.0028 to $0.0018 per contract side.
The Exchange also believes the proposed fee change is equitable and not unfairly discriminatory in that it is charged to all Members on all their transactions that clear in the customer range at the OCC, with an exception.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. This proposal does not create an unnecessary or inappropriate intra-market burden on competition because the ORF applies to all customer activity, thereby raising regulatory revenue to offset regulatory expenses. It also supplements the regulatory revenue derived from non-customer activity. The Exchange notes, however, the proposed change is not designed to address any competitive issues. Indeed, this proposal does not create an unnecessary or inappropriate inter-market burden on competition because it is a regulatory fee that supports regulation in furtherance of the purposes of the Act. The Exchange is obligated to ensure that the amount of regulatory revenue collected from the ORF, in combination with its other regulatory fees and fines, does not exceed regulatory costs.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is filing with the Commission a proposed rule change to extend the pilot related to the market-wide circuit breaker in Rule 11.16 to the close of business on March 18, 2022. The text of the proposed rule change is provided in Exhibit 5.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to extend the pilot related to the market-wide circuit breaker in Rule 11.16 to the close of business on March 18, 2022.
The Market-Wide Circuit Breaker (“MWCB”) rules, which for the Exchange are contained in Exchange Rule 11.16, provide an important, automatic mechanism that is invoked to promote stability and investor confidence during periods of significant stress when cash equities securities experience extreme market-wide declines. The MWCB rules are designed to slow the effects of extreme price declines through coordinated trading halts across both cash equity and equity options securities markets.
The cash equities rules governing MWCBs were first adopted in 1988 and, in 2012, all U.S. cash equity exchanges and FINRA amended their cash equities uniform rules on a pilot basis (the “Pilot Rules,”
The Commission approved the Pilot Rules, the term of which was to
The Exchange now proposes to amend Rule 11.16 to extend the pilot to the close of business on March 18, 2022. This filing does not propose any substantive or additional changes to Rule 11.16.
In late 2019, Commission staff requested the formation of a MWCB Task Force (“Task Force”) to evaluate the operation and design of the MWCB mechanism. The Task Force included representatives from the SROs, the Commission, CME, the Commodity Futures Trading Commission (“CFTC”), and the securities industry and conducted several organizational meetings in December 2019 and January 2020.
In Spring 2020, the MWCB mechanism proved itself to be an effective tool for protecting markets through turbulent times. In March 2020, at the outset of the worldwide COVID-19 pandemic, U.S. equities markets experienced four MWCB Level 1 halts, on March 9, 12, 16, and 18, 2020. In each instance, the markets halted as intended upon a 7% drop in the S&P 500 Index, and resumed as intended 15 minutes later.
In response to these events, in the Spring and Summer of 2020, the Task Force held ten meetings that were attended by Commission staff, with the goal of performing an expedited review of the March 2020 halts and identifying any areas where the MWCB mechanism had not worked properly. Given the risk of unintended consequences, the Task Force did not recommend changes that were not rooted in a noted deficiency. The Task Force recommended creating a process for a backup reference price in the event that SPX were to become unavailable, and enhancing functional MWCB testing. The Task Force also asked CME to consider modifying its rules to enter into a limit-down state in the futures pre-market after a 7% decline instead of 5%. CME made the requested change, which became effective on October 12, 2020.
On September 17, 2020, the Director of the Commission's Division of Trading and Markets asked the SROs to conduct a more complete study of the design and operation of the Pilot Rules and the LULD Plan during the period of volatility in the Spring of 2020.
In response to the request, the SROs created a MWCB “Working Group” composed of SRO representatives and industry advisers that included members of the advisory committees to both the LULD Plan and the NMS Plans governing the collection, consolidation, and dissemination of last-sale transaction reports and quotations in NMS Stocks. The Working Group met regularly from September 2020 through March 2021 to consider the Commission's request, review data, and compile its study. The Working Group's efforts in this respect incorporated and built on the work of an MWCB Task Force.
The Working Group submitted its study to the Commission on March 31, 2021 (the “Study”).
In the Study, the Working Group concluded: (1) The MWCB mechanism set out in the Pilot Rules worked as intended during the March 2020 events; (2) the MWCB halts triggered in March 2020 appear to have had the intended effect of calming volatility in the market, without causing harm; (3) the design of the MWCB mechanism with respect to reference value (SPX), trigger levels (7%/13%/20%), and halt times (15 minutes) is appropriate; (4) the change implemented in Amendment 10 to the Plan to Address Extraordinary Market Volatility (the “Limit Up/Limit Down Plan” or “LULD Plan”) did not likely have any negative impact on MWCB functionality; and (5) no changes should be made to the mechanism to prevent the market from halting shortly after the opening of regular trading hours at 9:30 a.m.
In light of the foregoing conclusions, the Working Group also made several recommendations, including that the Pilot Rules should be permanent without any changes.
On July 16, 2021, NYSE proposed a rule change to make the Pilot Rules permanent, consistent with the Working Group's recommendations.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning when and how to halt trading in all stocks as a result of extraordinary market volatility. Based on the foregoing, the Exchange believes the benefits to market participants from Pilot Rules should continue on a pilot basis because they will promote fair and orderly markets and protect investors and the public interest.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act because the proposal would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Commission reviews the proposed rule change to make the Pilot Rules permanent.
Further, the Exchange understands that FINRA and other national securities exchanges have already filed or will file proposals to extend their rules regarding the market-wide circuit breaker pilot. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 1, 2021, MIAX PEARL, LLC (“MIAX Pearl” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Paragraph (b) of Rule 15c2-12 requires underwriters of municipal securities: (1) To obtain and review an official statement “deemed final” by an issuer of the securities, except for the omission of specified information prior to making a bid, purchase, offer, or sale of municipal securities; (2) in non-competitively bid offerings, to send, upon request, a copy of the most recent preliminary official statement (if one exists) to potential customers; (3) to contract with the issuer to receive, within a specified time, sufficient copies of the final official statement to comply with Rule 15c2-12's delivery requirement and the rules of the Municipal Securities Rulemaking Board (“MSRB”); (4) to send, upon request, a copy of the final official statement to potential customers for a specified period of time; and (5) before purchasing or selling municipal securities in connection with an offering, to reasonably determine that the issuer or the obligated person has undertaken, in a written agreement or contract, for the benefit of holders of such municipal securities, to provide certain information on a continuing basis to the MSRB in an electronic format as prescribed by the MSRB. The information to be provided consists of: (1) Certain annual financial and operating information and audited financial statements (“annual filings”); (2) notices of the occurrence of any of 16 specific events (“event notices”); and (3) notices of the failure of an issuer or obligated person to make a submission required by a continuing disclosure agreement (“failure to file notices”).
Rule 15c2-12 is intended to enhance disclosure, and thereby reduce fraud, in the municipal securities market by establishing standards for obtaining, reviewing and disseminating information about municipal securities by their underwriters.
Municipal offerings of less than $1 million are exempt from the rule, as are offerings of municipal securities issued in large denominations that are sold to no more than 35 sophisticated investors or have short-term maturities.
It is estimated that approximately 28,000 issuers, 250 broker-dealers and the MSRB will spend a total of 797,681 hours per year complying with Rule 15c2-12.
The Commission estimates that up to 65% of issuers may use designated agents to submit some or all of their continuing disclosure documents to the MSRB. The Commission estimates that the average total annual cost that may be incurred by issuers that use the services of a designated agent will be $15,470,000.
The Commission initially estimated that the MSRB would incur total annual costs of $670,000 to operate the continuing disclosure service for the MSRB's Electronic Municipal Market Access (“EMMA”) system. This estimate was based on prior discussions with MSRB staff. Based on more recent discussions with MSRB staff, the Commission now estimates the total cost to operate the continuing disclosure service for EMMA to be $1,055,000.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number. The public may view background documentation for this information collection at the following website:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe EDGX Exchange, Inc. (“EDGX” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposed rule change to extend the current pilot program related to EDGX Rule 11.15, Clearly Erroneous Executions, to the close of business on April 20, 2022. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to extend the effectiveness of the Exchange's current rule applicable to Clearly Erroneous Executions to the close of business on October 20, 2021. Portions of Rule 11.15, explained in further detail below, are currently operating as a pilot program set to expire on October 20, 2021.
On September 10, 2010, the Commission approved, on a pilot basis, changes to EDGX Rule 11.15 that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set forth in the rule.
On December 26, 2018, the Commission published the proposed Eighteenth Amendment
The Exchange now proposes to amend EDGX Rule 11.15 to extend the pilot's effectiveness to the close of business on April 20, 2022. The Exchange understands that the other national securities exchanges and Financial Industry Regulatory Authority (“FINRA”) have filed or plan to file similar proposals to extend their respective clearly erroneous execution pilot programs, the substance of which are identical to EDGX Rule 11.15.
The Exchange does not propose any additional changes to EDGX Rule 11.15. The Exchange believes the benefits to market participants from the more objective clearly erroneous executions rule should continue on a limited six month pilot basis. As the Plan was approved by the Commission to operate on a permanent, rather than pilot, basis the Exchange intends to assess whether additional changes should also be made to the operation of the clearly erroneous execution rules. Extending the effectiveness of EDGX Rule 11.15 for an additional six months should provide the Exchange and other national securities exchanges additional time to consider further amendments, if any, to the clearly erroneous execution rules.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that extending the clearly erroneous execution pilot under EDGX Rule 11.15 for an additional six months would help assure that the determination of whether a clearly erroneous trade has occurred will be based on clear and objective criteria, and that the resolution of the incident will occur promptly through a transparent process. The proposed rule change would also help assure consistent results in handling erroneous trades across the U.S. equities markets, thus furthering fair and orderly markets, the protection of investors and the public interest. Based on the foregoing, the Exchange believes the amended clearly erroneous executions rule should continue to be in effect on a pilot basis while the Exchange and the other national securities exchanges consider and develop a permanent proposal for clearly erroneous execution reviews.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange understands that FINRA and other national securities exchanges have or will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No comments were solicited or received on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend the current pilot program related to Nasdaq Equity 11, Rule 11890 (Clearly Erroneous Transactions) to the close of business on April 20, 2022.
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
The purpose of the proposed rule change is to extend the current pilot program related to Equity 11, Rule 11890, Clearly Erroneous Transactions, to the close of business on April 20, 2022. The pilot program is currently due to expire on October 20, 2021.
On September 10, 2010, the Commission approved, on a pilot basis, changes to Equity 11, Rule 11890 that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set forth in the rule.
These changes were originally scheduled to operate for a pilot period to coincide with the pilot period for the Plan to Address Extraordinary Market Volatility (the “Limit Up-Limit Down Plan” or “LULD Plan”).
The Exchange now proposes to amend Equity 11, Rule 11890 to extend the pilot's effectiveness for a further six months until the close of business on April 20, 2022. If the pilot period is not either extended, replaced or approved as permanent, the prior versions of paragraphs (a)(2)(C), (c)(1), (b)(i), and (b)(ii) shall be in effect, and the provisions of paragraphs (g) through (i) shall be null and void.
The Exchange does not propose any additional changes to Equity 11, Rule 11890. Extending the effectiveness of Rule 11890 for an additional six months will provide the Exchange and other self-regulatory organizations additional time to consider whether further amendments to the clearly erroneous execution rules are appropriate.
The Exchange believes the proposed rule change is consistent with the requirements of Section 6(b) of the Act,
The Exchange believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning review of transactions as clearly erroneous. The Exchange believes that extending the clearly erroneous execution pilot under Equity 11, Rule 11890 for an additional six months would help assure that the determination of whether a clearly erroneous trade has occurred will be based on clear and objective criteria, and that the resolution of the incident will occur promptly through a transparent process. The proposed rule change would also help assure consistent results in handling erroneous trades across the U.S. equities markets, thus furthering fair and orderly markets, the protection of investors and the public interest. Based on the foregoing, the Exchange believes the amended clearly erroneous executions rule should continue to be in effect on a pilot basis while the Exchange and other self-regulatory organizations consider whether further amendments to these rules are appropriate.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposal would ensure the continued, uninterrupted operation of harmonized clearly erroneous execution rules across the U.S. equities markets while the Exchange and other self-regulatory organizations consider whether further amendments to these rules are appropriate. The Exchange understands that the other national securities exchanges and FINRA will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (the “Commission”) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget for extension and approval.
Rule 17f-6 (17 CFR 270.17f-6) under the Investment Company Act of 1940 (15 U.S.C. 80a) permits registered investment companies (“funds”) to maintain assets (
The rule requires a written contract that contains certain provisions designed to ensure important safeguards and other benefits relating to the custody of fund assets by FCMs. To protect fund assets, the contract must require that FCMs comply with the segregation or secured amount requirements of the Commodity Exchange Act (“CEA”) and the rules under that statute. The contract also must contain a requirement that FCMs obtain an acknowledgment from any clearing organization that the fund's assets are held on behalf of the FCM's customers according to CEA provisions.
Because rule 17f-6 does not impose any ongoing obligations on funds or
Commission staff, however, estimates that any burden of the rule would be borne by funds and FCMs entering into
These estimates are made solely for the purposes of the Paperwork Reduction Act, and are not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms.
Compliance with the collection of information requirements of the rule is necessary to obtain the benefit of relying on the rule. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Written comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days after this publication.
Please direct your written comments to David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, C/O Cynthia Roscoe, 100 F Street NE, Washington, DC 20549; or send an email to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 15g-5 requires brokers and dealers to disclose to customers the amount of compensation to be received by their sales agents in connection with penny stock transactions. The purpose of the rule is to increase the level of disclosure to investors concerning penny stocks generally and specific penny stock transactions.
The Commission estimates that approximately 178 broker-dealers will spend an average of approximately 87 hours annually to comply with the rule. Thus, the total time burden is approximately 15,486 burden-hours per year.
Rule 15g-5 contains record retention requirements. Compliance with the rule is mandatory.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to extend the current pilot program related to FINRA Rule 11892 (Clearly Erroneous Transactions in Exchange-Listed Securities) (“Clearly Erroneous Transaction Pilot” or “Pilot”) until April 20, 2022.
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.
FINRA is proposing a rule change to extend the current pilot program related to FINRA Rule 11892 governing clearly erroneous transactions in exchange-listed securities until the close of business on April 20, 2022. Extending the Pilot would provide FINRA and the national securities exchanges additional time to consider a permanent proposal for clearly erroneous transaction reviews.
On September 10, 2010, the Commission approved, on a pilot basis, changes to FINRA Rule 11892 that, among other things: (i) Provided for uniform treatment of clearly erroneous transaction reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of FINRA to deviate from the objective standards set forth in the rule.
On April 9, 2019, FINRA filed a proposed rule change to untie the effectiveness of the Clearly Erroneous Transaction Pilot from the effectiveness of the Plan, and to extend the Pilot's effectiveness to the close of business on October 18, 2019.
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 immediately.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
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. The proposal would ensure the continued, uninterrupted operation of harmonized clearly erroneous transaction rules across the U.S. equities markets while FINRA and the national securities exchanges consider further amendments to these rules. FINRA understands that the national securities exchanges also will file similar proposals to extend their clearly erroneous execution pilot programs, as applicable. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration (SBA).
Notice and request for comment.
The Small Business Administration (SBA) is requesting comments on its draft
Comments must be received on or before Friday, November 19, 2021.
You may submit comments by the following methods (Please send comments by one method only):
Kathleen Graber, Lead Performance Analyst, Small Business Administration by email:
The draft Small Business Administration
The SBA proposes three strategic goals for the next five years: (1) Ensure Equitable and Customer-Centric Design and Delivery of Programs to Support Small Businesses and Innovative Start-ups; (2) Build Resilient Businesses and a Sustainable Economy; and (3) Implement Strong Stewardship of Resources for Greater Impact.
The draft SBA
Notice is hereby given that Ballast Point Ventures IV, L.P. 401 East Jackson Street, Suite 2300, Tampa, FL 33602, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under Section 312 of the Act and Section 107.730, Financings which Constitute Conflicts of Interest of the Small Business Administration (“SBA”) Rules and Regulations (13 CFR 107.730). Ballast Point Ventures IV, L.P., is seeking a written exemption from SBA for a proposed financing to Symphonic Distribution Inc., 707 N Franklin Street, Suite 400, Tampa, FL 33602.
The financing is brought within the purview of § 107.730(a)(4) of the Regulations because Ballast Point Ventures IV, L.P. will provide financing where its Associate owns more than 10% equity ownership in the company, Symphonic Distribution Inc., and will have a portion of its obligation discharged, therefore this transaction is considered
Notice is hereby given that any interested person may submit written comments on this transaction within fifteen days of the date of this publication to the Associate Administrator, Office of Investment and Innovation, U.S. Small Business Administration, 409 Third Street SW, Washington, DC 20416.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the Commonwealth of Pennsylvania (FEMA-4618-DR), dated 10/08/2021.
Issued on 10/14/2021.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the Commonwealth of Pennsylvania, dated 10/08/2021, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
Susquehanna River Basin Commission.
Notice.
This notice lists Grandfathering Registration for projects by the Susquehanna River Basin Commission during the period set forth in
September 1-30, 2021.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists GF Registration for projects, described below, pursuant to 18 CFR 806, Subpart E for the time period specified above:
1. City of Corning—Public Water Supply System, GF Certificate No. GF-202109183, City of Corning, Steuben County, N.Y.; Wells 1, 2, 3, and 9; Issue Date: September 3, 2021.
2. Pennsylvania—American Water Company—White Deer District, GF Certificate No. GF 202109184, White Deer and Buffalo Townships, Union County, Pa.; White Deer Creek and Spruce Run; Issue Date: September 3, 2021.
3. Valley Proteins, Inc.—Terre Hill Facility, GF Certificate No. GF-202109185, East Earl Township, Lancaster County, Pa.; Wells 1 and 2 and consumptive use; Issue Date: September 3, 2021.
4. Knouse Foods Cooperative, Inc.—Gardners Plant, GF Certificate No. GF-202109186, Tyrone Township, Adams County, Pa.; Wells 3, 5, 6, 8, and 10; Issue Date: September 17, 2021.
5. The Pennsylvania State University—Blue and White Golf Courses and Public Water Supply System, GF Certificate No. GF-202109187, Ferguson Township and State College Borough, Centre County, Pa.; Well UN-28A; Issue Date: September 30, 2021.
Susquehanna River Basin Commission.
Notice; correction.
The Susquehanna River Basin Commission published a notice in the
The public hearing will convene on November 4, 2021, at 6:30 p.m. The public hearing will end at 9:00 p.m. or at the conclusion of public testimony, whichever is earlier. The deadline for the submission of written comments is November 15, 2021.
This hearing will be held by telephone conference rather than at a physical location. Conference Call #1-877-668-4493 (Toll-Free number)/Access code: 177 163 3585.
Jason Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423 or
Information concerning the applications for the projects is available at the Commission's Water Application and Approval Viewer at
1. Project Sponsor and Facility: Elkview Country Club, Greenfield and Fell Townships, Lackawanna County, PA. Conforming the grandfathering amount with the forthcoming determination for a surface water withdrawal up to 0.144 mgd (30-day average) from Crystal Lake (Docket No. 20021002).
Interested parties may call into the hearing to offer comments to the Commission on any business listed above required to be the subject of a public hearing. Given the telephonic nature of the meeting, the Commission strongly encourages those members of the public wishing to provide oral comments to pre-register with the Commission by emailing Jason Oyler at
Susquehanna River Basin Commission.
Notice.
This notice lists the projects approved by rule by the Susquehanna River Basin Commission during the period set forth in
September 1-30, 2021.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists the projects, described below, receiving approval for the consumptive use of water pursuant to the Commission's approval by rule process set forth in 18 CFR 806.22(e) and 18 CFR 806.22(f) for the time period specified above:
1. Chesapeake Appalachia, L.L.C; Pad ID: Jag; ABR-201109002.R2; Franklin Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: September 20, 2021.
2. Chesapeake Appalachia, L.L.C; Pad ID: LKM; ABR-201109014.R2; Litchfield Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: September 20, 2021.
3. Chesapeake Appalachia, L.L.C; Pad ID: McGroarty; ABR-201109012.R2; Albany Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: September 20, 2021.
4. SWN Production Company, LLC; Pad ID: Bernstein Pad; ABR-201107052.R2; Clifford Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: September 20, 2021.
5. EXCO Resources (PA) LLC; Pad ID: Cadwalader Pad; ABR-201103039.R2; Cogan House Township, Lycoming County, Pa.; Consumptive Use of Up to 8.0000 mgd; Approval Date: September 23, 2021.
6. EXCO Resources (PA) LLC; Pad ID: Arthur Pad; ABR-201103018.R2; Franklin Township, Lycoming County, Pa.; Consumptive Use of Up to 8.0000 mgd; Approval Date: September 23, 2021.
7. XTO Energy, Inc.; Pad ID: PA Tract Unit G; ABR-201109018.R2; Chapman Township, Clinton County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: September 23, 2021.
8. Repsol Oil & Gas (USA), LLC; Pad ID: CAMP COMFORT (07 185); ABR-201106025.R2; Middletown Township, Susquehanna County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: September 23, 2021.
9. Repsol Oil & Gas (USA), LLC; Pad ID: COOLEY (05 004) P; ABR-201007099.R2; Orwell Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: September 23, 2021.
10. Repsol Oil & Gas (USA), LLC; Pad ID: WALTERS (05 001) J; ABR-201007096.R2; Herrick Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: September 23, 2021.
11. Rockdale Marcellus, LLC; Pad ID: Sawyer 376; ABR-201007061.R2; Union Township, Tioga County; Pa.; Consumptive Use of Up to 4.9900 mgd; Approval Date: September 23, 2021.
12. ARD Operating, LLC; Pad ID: COP Tr 289 Pad D; ABR-201008030.R2; McHenry Township, Tioga County; Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: September 23, 2021.
13. Chief Oil & Gas, LLC; Pad ID: BAUMUNK NORTH UNIT PAD; ABR-202109001; Fox Township, Sullivan County, Pa.; Consumptive Use of Up to 2.5000 mgd; Approval Date: September 23, 2021.
14. Chief Oil & Gas, LLC; Pad ID: Yonkin Drilling Pad #1 ABR-201109020.R2; Cherry Township, Sullivan County, Pa.; Consumptive Use of Up to 2.0000 mgd; Approval Date: September 26, 2021.
15. SWN Production Company, LLC; Pad ID: Cramer Pad; ABR-201108007.R2; New Milford Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: September 26, 2021.
16. SWN Production Company, LLC; Pad ID: Folger Pad; ABR-201108022.R2; New Milford Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: September 26, 2021.
17. ARD Operating, LLC; Pad ID: Elbow Pad A; ABR-201008055.R2; Cogan House Township, Lycoming County; Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: September 26, 2021.
18. ARD Operating, LLC; Pad ID: COP Tract 356 Pad G; ABR-201108017.R2; Cummings Township, Lycoming County; Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: September 26, 2021.
19. Rockdale Marcellus, LLC; Pad ID: Foti 721; ABR-201007118.R2; McNett Township, Lycoming County; Pa.; Consumptive Use of Up to 4.9900 mgd; Approval Date: September 26, 2021.
20. ARD Operating, LLC; Pad ID: COP Tr 285 Pad H; ABR-201008018.R2; Chapman Township, Clinton County; Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: September 26, 2021.
21. Chief Oil & Gas, LLC; Pad ID: Kerr B Drilling Pad #1 ABR-201109031.R2; Lathrop Township, Sullivan County, Pa.; Consumptive Use of Up to 2.0000 mgd; Approval Date: September 28, 2021.
22. Repsol Oil & Gas (USA), LLC; Pad ID: BENNETT (05 164) R; ABR-201107049.R2; Pike Township, Susquehanna County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: September 23, 2021.
23. Rockdale Marcellus, LLC; Pad ID: Taylor 718; ABR-201007016.R2; Liberty Township, Tioga County; Pa.; Consumptive Use of Up to 4.9900 mgd; Approval Date: September 28, 2021.
24. BKV Operating, LLC; Pad ID: Bush Pad; ABR-201109028.R2; Bridgewater and Forest Lake Townships, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: September 28, 2021.
25. Blackhill Energy LLC; Pad ID: REITER 1H Pad; ABR-201008048.R2; Ridgebury Township, Bradford County, Pa.; Consumptive Use of Up to 4.9900 mgd; Approval Date: September 28, 2021.
26. SWN Production Company, LLC; Pad ID: Clark Pad; ABR-201107043.R2; Herrick and Orwell Townships, Bradford County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: September 28, 2021.
27. Chesapeake Appalachia, L.L.C; Pad ID: Circle H; ABR-201109033.R2; Wilmot Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: September 30, 2021.
28. Chesapeake Appalachia, L.L.C; Pad ID: Smurkoski; ABR-201109032.R2; Meshoppen Township, Wyoming County, Pa.; Consumptive Use of Up to
29. Chesapeake Appalachia, L.L.C; Pad ID: Stone; ABR-201109035.R2; Tuscarora Township, Bradford County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: September 30, 2021.
30. Seneca Resources Company, LLC; Pad ID: C09-Q; ABR-202109002; Shippen Township, Cameron County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: September 30, 2021.
31. Seneca Resources Company, LLC; Pad ID: DCNR Tract 595 Pad F; ABR-201008044.R2; Bloss Township, Tioga County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: September 30, 2021.
32. Blackhill Energy LLC; Pad ID: STAHL 1H; ABR-201107021.R2; Chapman Township, Clinton County, Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: September 30, 2021.
33. Repsol Oil & Gas USA, LLC; Pad ID: NOBLE (03 029) S; ABR-201007011.R2; Wells Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: September 30, 2021.
34. Repsol Oil & Gas USA, LLC; Pad ID: THORP (03 049) D; ABR-201007082.R2; Wells Township, Bradford County, Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: September 30, 2021.
Federal Aviation Administration, Department of Transportation.
Notice of public meeting.
This notice announces a meeting of the Commercial Space Transportation Advisory Committee (COMSTAC).
The November 5, 2021 meeting will be held from 9:00 a.m. to 4:15 p.m.
Requests to attend the virtual meeting must be received by November 3, 2021.
Requests for accommodations to a disability must be received by November 3, 2021.
Requests to speak during the meeting must be submitted to the Department of Transportation (DOT) by November 2, 2021 and include a written copy of the speaker's remarks. Registrants in the Zoom meeting room will have the opportunity to interact directly with committee members.
Requests to submit written materials to be reviewed during the meeting must be received by DOT no later than November 2, 2021.
The meeting will be an internet-only meeting. No physical meeting is planned. Instructions on how to attend the meeting, copies of meeting minutes, and a detailed agenda will be posted on the COMSTAC website at:
James Hatt, Designated Federal Officer, U.S. Department of Transportation, at
The Commercial Space Transportation Advisory Committee was created under the Federal Advisory Committee Act (FACA), in accordance with Public Law 92-463. Since its inception, COMSTAC has provided information, advice, and recommendations to DOT through FAA regarding technology, business, and policy issues relevant to oversight of the U.S. commercial space transportation sector.
The meeting listed in this notice will be open to the public. DOT is committed to providing equal access to this meeting for all participants. If you need alternative formats or services because of a disability, such as sign language, interpretation, or other ancillary aids, please contact the person listed in the
There will be at least thirty minutes allotted for oral comments from members of the public joining a COMSTAC meeting. To accommodate as many speakers as possible, the time for each commenter may be limited. Individuals wishing to reserve speaking time during the meeting must submit a request at the time of registration, as well as the name, address, and organizational affiliation of the proposed speaker. If the number of registrants requesting to make statements is greater than can be reasonably accommodated during the meeting, the FAA Office of Commercial Space Transportation may conduct a lottery to determine which registrants will have the opportunity to speak. Speakers are requested to submit a written copy of their prepared remarks for inclusion in the meeting records and for circulation to COMSTAC members. All prepared remarks submitted on time will be accepted and considered as part of the record. Any member of the public may present a written statement to the committee at any time.
Issued in Washington, DC, this 18th day of October, 2021.
Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).
Notice of availability and request for comments.
This document provides the public with notice that on August 22, 2021, CSX Transportation (CSX) submitted its Test Request for Trip Optimizer Air Brake Control (TO Air Brake Control), Revision 1, dated August 22, 2021, to FRA. CSX asks FRA to approve its Test Request so that it may test its TO Air Brake Control on
FRA will consider comments received by December 20, 2021 before taking final action on the Test Request. FRA may consider comments received after that date to the extent practicable and without delaying implementation of valuable or necessary modifications to a PTC system.
All comments concerning this proceeding should identify the agency name and Docket Number FRA-2010-0028, and may be submitted on
Gabe Neal, Staff Director, Signal, Train Control, and Crossings Division, telephone: 816-516-7168, email:
On June 21, 2021, FRA certified CSX's Interoperable Electronic Train Management System (I-ETMS) PTC system per Title 49 Code of Federal Regulations (CFR) Section 236.1015. Pursuant to 49 CFR 236.1035, CSX must request FRA-approval of any regression testing of a certified PTC system that is conducted on the general rail system.
CSX's Test Request are available for review online at
In accordance with 49 CFR 211.3, FRA solicits comments from the public to better inform its decisions. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Denial of petition.
Ride the Ducks International, LLC (RTDI), has determined that certain model year (MY) 1996-2014 RTDI Stretch Amphibious passenger vehicles (APVs) do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 113,
Abraham Diaz at (202) 366-5310 regarding FMVSS No. 302, and Neil Dold at (202) 366-7352 regarding FMVSS No. 113; Office of Vehicle Safety Compliance, NHTSA, facsimile (202) 366-5930.
Notice of receipt of the petition was published in the
RTDI described the subject noncompliances as the lack of a secondary hood latch system and the failure of certain materials in the passenger compartment to meet burn resistance requirements. RTDI stated its belief that the noncompliances are inconsequential as they relate to motor vehicle safety.
In support of its petition, RTDI submitted the following reasoning:
1. FMVSS No. 113 specifies, “a front opening hood which, in any open position, partially or completely obstructs a driver's forward view through the windshield must be provided with a second latch position on the hood latch system or with a second hood latch system.” 49 CFR 571.113, S4.2. The purpose of FMVSS No. 113 is to establish requirements for vehicle hood latch systems so that the hood remains secure while the vehicle is operated even if the primary latch fails or is not properly engaged. The absence of a secondary latch increases the possibility that the hood may open during vehicle operation and prevent the driver from seeing the road ahead.
2. The U.S. Coast Guard has adopted specific design and operational requirements for APVs.
3. FMVSS No. 302 sets out the burn resistance requirements for materials used in certain parameters within the occupant compartments of vehicles. The stated purpose of FMVSS No. 302 is “to reduce the deaths and injuries to motor vehicle occupants caused by vehicle fires, especially those originating in the interior of the vehicle from sources such as matches or cigarettes.” 49 CFR 571.302, S2.
The fire risks that exist in traditional motor vehicles are not the same concerns that present themselves in the APVs. Mitigating the risks of a fire occurring on board an APV are centered around the operation and safeguarding of the engine compartment and passenger egress conditions.
The APVs also have installed a series of systems designed to protect passengers and allow for ease of egress from the occupant compartment in the event of a fire. The RTDI vehicles have an open-air design with multiple areas of passenger egress. Additionally, and per U.S. Coast Guard requirements, all of the vehicles have a fire suppression system installed throughout the vehicle. The fire suppression systems include vent closures, heat detection devices, vapor detection systems and fire extinguishing systems. In the event of a fire in the APV, the operator will activate the fire suppression system which releases the carbon dioxide fire extinguishing agent. The vehicles are also equipped with two portable fire extinguishers and all vehicle operators receive emergency evacuation training on no less than a quarterly basis, per U.S. Coast Guard requirements, and often more regularly.
4. By contrast, FMVSS No. 302 is primarily concerned with protecting passengers against vehicle fires that occur due to flames or sparks inside the vehicle. In addition to the safety features described above, the vehicles have implemented other measures that provide an equivalent measure of safety to vehicle occupants. Smoking is expressly prohibited in the APVs. Passengers are advised of this requirement prior to the start of the tour. Onboard each vehicle there is a “narrator” or second crew member present. The narrator sits rearward, facing into the occupant compartment and in continuous view of the passengers' activities at all times while the APV is in operation. The narrator is physically located so that he/she would be able to see and stop a passenger attempting to light a match, flame or smoke on board.
In recognizing that APVs have a unique design and may encounter specialized hazard conditions, the U.S. Coast Guard employs a “systems approach” to certification for APVs. To meet U.S. Coast Guard requirements, the APVs must have “a level of safety equivalent to that required for a vessel of similar size and service.”
5. From its inception, the Safety Act has included a provision recognizing that some noncompliances may pose little or no actual safety risk. The Safety Act exempts manufacturers from their statutory obligation to provide notice and remedy upon a determination by NHTSA that a noncompliance is inconsequential to motor vehicle safety.
RTDI concluded by expressing the belief that the subject noncompliances are inconsequential as they relate to motor vehicle safety, and that its petition to be exempted from providing notification of the noncompliances, as required by 49 U.S.C. 30118, and a remedy for the noncompliances, as required by 49 U.S.C. 30120, should be granted.
Regarding FMVSS No. 113, RTDI asserted that:
1. From the driver's seat with the hood open in the normal operating position there is no obstruction to the driver's view. When in the “open” position, the hood is elevated at an angle of approximately 4.5 inches to 5 inches. The tip of the bow of the APV remains visible with the hood open or closed. There is no visual obstruction to the driver when the hood is in the “open” position.
2. The vehicle's engine requires the hood to remain partially open to provide sufficient air flow to the engine. The engine's air supply is forced through the forward opening of the engine hood. The radiator has a reverse fan which draws fresh air through the radiator to keep the engine cool.
3. The hood incorporates a stand which rests on a cam lever that is mechanically operated by a cable and handle located in the driver's compartment. To close the hood, the driver simply pulls a handle which rotates the cam and closes the hood. The driver would only need to close the hood in the event of a fire in the engine compartment to cut off the supply of oxygen.
4. The hood itself weighs approximately 139 pounds. Given the heavy weight of the hood and low operating speeds of the APVs (maximum 50 miles-per-hour (mph)), these features preclude the hood from unexpectedly opening due to air flow lifting the hood open and forcing it upward. The design of the engine hood has been in service for nearly 30 years, without incident. During testing, as much as 69.5 pounds of force was needed to lift the hood assembly. RTDI's consultant completed an analysis of the aerodynamic loading of the unlatched hood for the subject vehicles and reviewed the parameters for the force of air flow that potentially would cause an unlatched hood to open. This analysis was done by determining the applied aerodynamic forces due to lift and drag. The resulting moments about the hood hinge were then compared to the moments created by the weight of the hood. The overall goal was to determine the air speed (combined vehicle and headwind speed) necessary for the moments created by aerodynamic forces to exceed that of the moment created by weight.
The hood consists of a flat steel plate which is 49.5 inches long, 53.5 inches wide, and weighs approximately 139 lbs. Calculations for aerodynamic forces utilized flat plate assumptions with an aspect ratio of 1.08. Under the worst-case scenario, RTDI's consultant estimated that the hood angle of attack (AoA) will not exceed +5° during use; however, calculations were completed up to and including 10° in an excess of caution. All calculations utilized highly conservative assumptions and approximations.
Below is a bulleted summary of the RTDI consultant's findings:
• Under normal fully-loaded driving conditions, the hood sits at a zero or slightly negative AoA. Given these conditions, no lift can be generated on the flat plate. Thus, there is no critical speed sufficient to pivot the hood open.
• At the maximum projected AoA (5°), an air speed of at least 100 mph would be needed to generate sufficient aerodynamic forces to begin to open the hood.
• Even at 10° AoA, double that expected in normal use, a minimum air speed of 70 mph is necessary to potentially open the hood. This speed is still beyond the maximum combined (vehicle and headwind) air speed that would be seen by these vehicles in normal operation.
Regarding FMVSS No. 302, RTDI asserted that:
1. It had not certified each of the individual components and materials listed in FMVSS No. 302, S4.2 to the burn rate requirements of S4.3. However, all of the materials used in the occupant compartment of the APVs do follow the guidance provided by the U.S. Coast Guard in NVIC 1-01: Guidelines For The Certification Of DUKW Amphibious Vehicles. The NVIC recommends that:
Operators should consider highway requirements and land use when selecting the type of fire extinguishing system. Pre-engineered automatic systems may be required to shut down the engine when activated. This could pose a safety hazard if the DUKW is equipped with power steering and or brakes and the shutdown occurs in traffic.
The fire protection system, as well as other safety devices of the RTDI APVs, are designed to take into consideration the various hazards the vehicle may encounter in different operating zones (
2. The risk of fire associated with APVs stems primarily from mechanical and electrical faults serving as mechanisms for ignition. The risk of fire above deck is mitigated through constant visual monitoring by the onboard crew of the passenger compartment, as well as enforcement of a “No Smoking” policy. To satisfy U.S. Coast Guard requirements for commercial operations on water, RTDI APVs are outfitted with a robust fire protection system not normally found on land based vehicles, including the presence of fire extinguishers on board each vehicle. In addition, the construction of the APVs takes into account the particular risks associated with a vehicle that operates both on road and in the water. For example, traditional automotive wire is not allowed. Instead, marine electrical wire is required to be used, which is specifically designed for harsh environments: it is flexible yet heavily coated, resistant to corrosion and less likely to chafe and cause fires.
Below is a list of U.S. Coast Guard fire protection standards which the RTDI APVs meet. Although these standards are promulgated by the U.S. Coast Guard, they are all aimed at fire prevention and mitigation and would prevent a fire from occurring on the road as well as in the water.
3. The fire protection features satisfying the list of requirements cited above are also relevant to the prevention or suppression of fire during on road use of the APVs and all RTDI operators are trained in the use of these systems for both land and water operation. The design and construction of the APVs is consistent with the requirements set out above. Further, RTDI APV operators hold both commercial driver's licenses and U.S. Coast Guard certified vessel captain licenses. As the purpose of FMVSS No. 302 is to “reduce deaths caused by vehicle fires, especially those originating in the interior of the vehicle from sources such as matches or cigarettes,” the measures taken to mitigate against the outbreak of fires in the APVs per U.S. Coast Guard regulations also mitigate against the risk of fire contemplated by the FMVSS.
4. The APVs meet all U.S. Coast Guard requirements related to fire prevention and emergency response, which provides an equivalent level of protection from the risks contemplated by FMVSS No. 302.
5. In recall 17V-193, RTDI determined that the amphibious vehicles it manufactured between 1996 and 2014 do not meet the requirements of FMVSS No. 302. To view NTHSA's information request to RTDI and RTDI's full response including pictures and further vehicle information please refer to the docket.
The burden of establishing the inconsequentiality of a failure to comply with a
An important issue to consider in determining inconsequentiality based upon NHTSA's prior decisions on noncompliance issues was 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.
RTDI has not met its burden of demonstrating that the noncompliance with FMVSS No. 113 is inconsequential. In regards to FMVSS No. 113, RTDI says that as a practical matter, the hood on these vehicles is heavier than hoods on traditional vehicles and because of the weight it is highly unlikely that the force of the wind against the vehicle could move the hood. As the agency understands the hood design, the hood simply rests in the down position due to its weight and the effects of gravity. RTDI explained that “the hood incorporates a stand which rests on a cam lever that is mechanically operated by a cable and handle located in the driver's compartment. To close the hood, the driver simply pulls a handle which rotates the cam and closes the hood.” RTDI also explained that the hood on these vehicles must remain in an elevated open position at all times while operating (
RTDI had a consultant conduct an aerodynamic loading analysis to look at the possibility of the hood lifting, due to vehicle and wind speeds, and hood angle of incline. The actual analysis was not provided to the agency, but a summary of the results was provided by RTDI. The analysis concluded that under “normal fully-loaded driving conditions” and a wind speed in the range of 70-100 mph, based on different hood elevation levels, the hood could begin to open. The agency is unable to
RTDI stated that in 30 years it has never received a report or allegation involving the opening of the hood while operating on the public roads or in public waterways. From a safety perspective, the agency believes that the absence of prior reports or allegations of the hood opening under operation is not sufficient justification to ensure it will not happen in the future.
RTDI also stated that the presence of a secondary hood latch system is unnecessary because operating these vehicles with the hood slightly elevated diminishes the potential for a fire to occur in these vehicles. FMVSS No. 302 and FMVSS No. 113 are separate safety standards addressing separate safety needs. FMVSS No. 302 specifies burn resistance requirements for materials used in the occupant compartments of motor vehicles and FMVSS No. 113 establishes the requirement for providing a hood latch system or hood latch systems to reduce the risk of the hood opening and obstructing the driver's view. Reducing the probability of a vehicle fire is not an appropriate justification for not meeting the safety requirements of FMVSS No. 113.
RTDI also has not met its burden of demonstrating that the noncompliance with FMVSS No. 302 is inconsequential to safety, particularly without having provided information on the burn rates of the materials in the occupant compartment. The purpose of FMVSS No. 302 is to establish a burn rate for materials to reduce severity and frequency of burn injuries, allow the driver time to stop the vehicle, and increase occupant evacuation time.
FMVSS No. 302 differs from U.S. Coast Guard standards in that FMVSS No. 302 has a burn rate requirement for interior materials while U.S. Coast Guard standards focus on containment of fires originating in the engine and fire suppression. In response to an inquiry by the agency, RTDI stated that each of the individual components and materials within the boundaries of the occupant compartment of the subject APVs has not been certified to the burn rate requirements of paragraph S4.3 of FMVSS No. 302; however, it meets the standards and follows the guidelines provided by the U.S. Coast Guard. RTDI stated that the APVs are equipped with fire suppression systems and that the operators of the subject APVs hold both commercial driver's licenses and U.S. Coast Guard certified vessel captain licenses and are trained to identify and suppress a fire, should one occur.
While U.S. Coast Guard regulations are intended to mitigate some of the same fire risks as FMVSS No. 302, there are other potential sources of fire that the U.S. Coast Guard regulations do not address. In addition to fires originating in the engine compartment, NHTSA is concerned about other sources of fire, such as a fire originating from a vehicle crash, that may occur when the vehicle is operating on a roadway. Having trained personnel on board the subject APVs does not necessarily mitigate the need for compliance with FMVSS No. 302. Without information on the actual burn rates of the materials used in the vehicles' occupant compartment, NHTSA cannot evaluate whether the factors cited by RTDI mitigate the noncompliance to the point that it is inconsequential to motor vehicle safety. For instance, if the materials used in the occupant compartment are highly flammable, trained personnel may not have sufficient time to use a fire extinguisher in the event of a fire, or activate the fire suppression systems.
Lastly, RTDI also stated that it has a strict “No Smoking” policy and that the operators and crew monitor the passengers accordingly. Having a “No Smoking” policy does not necessarily appropriately mitigate safety risk in the subject APVs. A “No Smoking” policy would not prevent fires from other sources, even assuming that such a policy is always followed. Further, NHTSA cannot rely on RTDI's policies as a means to mitigate safety risks because later operations/owners may not implement on the same policies.
Accordingly, RTDI's petition is hereby denied and RTDI is consequently obligated to provide notification of, and a free remedy for, the noncompliances under 49 U.S.C. 30118 and 30120.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Denial of petition.
Ride the Ducks International, LLC (RTDI), has determined that certain model year (MY) 1996-2014 Ride the Ducks International Stretch Amphibious passenger vehicles (APVs) do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 103,
Neil Dold, Office of Vehicle Safety Compliance, NHTSA, telephone: (202) 366-7352, facsimile (202) 366-5930.
RTDI has determined that certain MY 1996-2014 Ride the Ducks International Stretch APVs do not fully comply with paragraph S4.1 of Federal Motor Vehicle Safety Standard (FMVSS) No. 103,
Notice of receipt of RTDI's petition was published in the
Approximately 105 MY 1996-2014 RTDI Stretch APVs, manufactured between January 1, 1996 and December 31, 2014 are potentially involved.
RTDI explained that the noncompliance is that the subject vehicles were manufactured without a windshield defrosting and defogging system, as required by paragraph S4.1 of FMVSS No. 103.
Paragraph S4.1 of FMVSS No. 103 includes the requirements relevant to this petition. Each vehicle shall have a windshield defrosting and defogging system.
As background, in 1996, RTDI began to produce APVs by performing extensive modifications to General Motors amphibious military trucks originally designated as DUKWs. The ability of the DUKW to transport troops, supplies or equipment across both land and water made them indispensable in World War II and the Korean War. The modifications performed by RTDI, which included replacement of the original drivetrain and enlarging the hull or body, were such that the end product was a newly manufactured vehicle employing donor parts. The original APVs are based on military vehicles that were capable of operation over both land and water. The resulting “Stretch Duck” APVs were manufactured by RTDI until 2005 when RTDI introduced its “Truck Duck” APVs. The Truck Duck APVs are based on military cargo vehicles. Both the Stretch Duck and Truck Ducks were manufactured in in accordance with state and U.S. Coast Guard rules and regulations. RTDI has not manufactured any vehicles since 2014.
RTDI described the subject noncompliance and stated its belief that the noncompliance is inconsequential as it relates to motor vehicle safety.
In support of its petition, RTDI submitted the following reasoning:
1. FMVSS No. 103 specifies that “[e]ach vehicle shall have a windshield defrosting and defogging system.” 49 CFR 571.103, S4(a), S4.1. The purpose of FMVSS No. 103 is to establish minimum performance requirements for vehicle windshield defrosting and defogging systems in order to ensure that the vehicle operator is able to sufficiently see through the windshield.
The APVs have features that are designed to achieve the same purpose as the standard. The APVs' “open-air” design precludes fog from building up on the windshield. Fog buildup on the interior or exterior of a motor vehicle windshield occurs when water condenses on the windshield. For water to condense on a windshield, the air next to the windshield must be humid and the air's dew point—the temperature to which air must be cooled to become saturated with water vapor—must be higher than the windshield's temperature. In other words, humid and warm air must surround a cool windshield. Because of its open-air design, the APVs will not encounter any of the physical conditions that create fog buildup on the windshield. The APVs do not have solid glass windows in the passenger compartment and the rear of the vehicle is also open to the air. The side panels of the driver's compartment are open on both sides of the windshield and the center windshield can be pushed outward and opened when needed. Because of the APVs' design, the ambient air is able to continually circulate within the interior of the vehicle, creating no difference between the temperature or humidity of the air outside and inside the vehicle. In the unlikely event that fog did accumulate on the windshield, the APVs have windshield wipers to clear the surface and the vehicle operator can also push down the windshield for visibility.
2. Frost builds up on the windshield of a vehicle when the temperature of liquid or condensation on the windshield decreases to the freezing point of water, turning the condensation into frost. The APVs' lack of a defrosting system similarly does not present a safety concern. The APVs are only operated on a seasonal basis and not during the winter months in any location where the vehicles provide tours. The APVs, therefore, are not operated during or exposed to weather conditions that would expose the vehicles to frost or create the need to defrost the windshields. As above, the operator also has the ability to push down the center windshield or use the windshield wipers to increase visibility in the unlikely event of frost.
3. From its inception, the Safety Act has included a provision recognizing that some noncompliances may pose little or no actual safety risk. The Safety Act exempts manufacturers from their statutory obligation to provide notice and remedy upon a determination by NHTSA that a noncompliance is inconsequential to motor vehicle safety.
RTDI concluded by expressing the belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety, and that its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
On October 10, 2017, RTDI, per a request from NHTSA's Office of Chief Counsel, provided the following supplemental information:
Regarding FMVSS No. 103, RTDI asserted that:
1. The subject vehicles are equipped with heaters but not air conditioning. There are two types of heating systems used, depending on the type of vehicle.
a. For “Stretch Duck” APVs, heaters are located at the base of the passenger compartment side walls, with one heater located on each side. The heaters run lengthwise, from the front to the back of the vehicle's interior compartment. The heaters are radiant type heaters that utilize coils that are plumbed into the engine's water coolant system. Small blowers are located at one end of each heater box that force the radiant heat towards the passenger seated next to the exhaust vents.
b. The “Truck Duck” APVs use heaters with a similar design (plumbed into the engine's coolant system), however, there are two smaller heaters with larger blowers. These heaters are located under the left and right centermost passenger seats.
2. Due to the excessive ventilation of the passenger space (even when curtains are down) when the heaters are operational, they are not capable of maintaining an increased ambient temperature within the passenger space. Frost and fog cannot build on the
3. The interior space of the vehicle is under constant ventilation due to the configuration of the engine's reverse radiator fan, the various canopy openings, and the passenger deck design. The APVs are considered an “open boat” design under the U.S. Coast Guard regulations. Per the regulations, the deck of an open boat must be capable of draining any accumulation of water directly to the bilge pumps which are located below the deck.
4. RTDI claimed that the design of the APVs and the vehicles' use pattern precludes the accumulation of frost and fog on the windshield. RTDI asserted that this is consistent with the on-road experience of the APVs. Generally, the vehicles do not operate during the cold weather. In the event that fog or frost did accumulate on the front windshield, the driver would be able to quickly and easily lower the windshield. RTDI has established operational safety guidelines for the use of the drivers open/close feature. RTDI's guidelines states that an operator should not open the windshield “unless the visibility through the windshield becomes obstructed, the opening and closing of the front windshield should only take place when the vehicle is traveling at a slow rate of speed (
5. The vehicles are equipped with clear PVC soft side curtains that can be lowered and raised by the driver. The side curtains' operational controls are located on the driver's dash and are operated by using two momentary switches (one switch operates the left side curtain and the second switch operates the right side curtain). When the operator holds the switch down the curtains will lower and when the switch is held up the curtain will raise. The curtains have limit switches that automatically stop the curtains once they reach a height of not less than 32″. This height restriction is consistent with U.S. Coast Guard requirements for means of escape which provides the “minimum clear opening must be not less than 32 inches.” 46 CFR 116.500. As a safety precaution, RTDI installed red markers on the canopy uprights to provide the APV operator with a visual means to ensure the limit switches are properly set and have reached the 32” placement. Additionally, the U.S. Coast Guard inspects and tests the curtain safety feature annually.
6. The curtains are generally lowered due to inclement weather conditions. It takes the driver less than 30 seconds to lower the curtains. The side curtains do not enclose the entire passenger's space; only the left and right sides of the passenger compartment are enclosed by the side curtains. In the event of an emergency, the driver can deploy the side curtains from the driver's station to allow for quick egress. Passengers are also able to lift and push curtains out in the event of an emergency.
NHTSA has considered RTDI's arguments and has determined that RTDI has not met its burden of demonstrating that the subject noncompliance is inconsequential. The Agency responds to RTDI's arguments below.
The burden of establishing the inconsequentiality of a failure to comply with a
An important issue to consider in determining inconsequentiality based upon NHTSA's prior decisions on noncompliance issues was 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.
For safe viewing through the front windshield, FMVSS No. 103 specifies requirements for windshield defrosting and defogging systems. These systems are critical for removing and preventing frost and ice from the windshield during cold weather seasons, or fog anytime the ambient temperature, humidity and dew point are at the required combination between the windshield and the air inside or outside of the vehicle.
RTDI stated that without a windshield defrosting and defogging system the features of the APVs are designed to achieve the same purpose as the
In a separate inquiry to RTDI, the Agency learned that APVs are equipped with plastic side windows that can be deployed to partially enclose the vehicle's interior during periods of inclement weather and that these vehicles are not equipped with air conditioning systems but are designed with interior heating units.
The Agency does not agree with RTDI's judgment that the subject APVs, designed without a defogging or defrosting system, achieve the same purpose as FMVSS No. 103. During times of inclement weather when the side curtains are deployed and the front windshield is in the up position, the vehicle is not in a fully “open-air” configuration as suggested by RTDI. If fog were to develop on the windshield, and the vehicle is being driven on public roadways at posted speeds, the driver would not be able to safely lower the front windshield to address the problem, as explained by RTDI. Furthermore, RTDI mentioned that the APVs are only operated on a seasonal basis and not during winter months, however, the vehicles were designed with heating systems which would suggest they can be operated at times when the outside temperature is too cool for passenger comfort or when or frost conditions may occur. In all events, RTDI has not provided sufficient information for NHTSA to determine that the conditions underlying the regulatory requirement at issue will not occur during operation of the subject APVs.
NHTSA notes that FMVSS No. 103 was amended in 1985 to explicitly provide in § 4(b) that passenger cars, multipurpose passenger vehicles, trucks, and buses manufactured for sale in the non-continental United States may, at the option of the manufacturer, have a windshield defogging system which operates either by applying heat to the windshield or by dehumidifying the air inside the passenger compartment of the vehicle, in lieu of meeting the requirements specified by paragraph (a) of this section (50 FR 48772, Nov. 27, 1985). While this section of FMVSS No. 103 does not apply to the RTDI vehicles at issue, the reasons for this amendment are relevant to RTDI's proffered rationale that vehicles operated only in warmer months need not have a windshield defogging system. The 1985 amendment was promulgated in response to a petition filed by an entity located in the Virgin Islands alleging that windshields in that locale fog up very badly in damp weather, creating a serious safety hazard in vehicles which do not have defogging systems. The petitioner requested that manufacturers be required to install defogging systems in passenger cars sold in the Virgin Islands. NHTSA reviewed the climatic conditions of the Virgin Islands as well as other non-continental areas of the United States and determined that the petitioner's claim that climatic conditions conducive to frequent windshield fogging were accurate. In these climes, fogging occurs when a cool windshield contacts warm, moist air and the water vapor in the air condenses in the form of a liquid on the windshield. NHTSA further found these areas to be characterized by high temperatures and high humidity and windshield fogging would be especially likely to occur in the morning hours.
Given the operating regime of the RTDI vehicles, where high humidity is likely to be encountered along with higher temperatures, NHTSA is concerned, that under some combinations of interior and exterior environmental conditions (
In consideration of the foregoing, NHTSA finds that RTDI has not met its burden of persuasion that the subject FMVSS No. 103 noncompliance in the subject vehicles is inconsequential to motor vehicle safety. Accordingly, RTDI's petition is hereby denied and RTDI is consequently obligated to provide notification of, and a free remedy for, that noncompliance under 49 U.S.C. 30118 and 30120.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Denial of petition.
Ride the Ducks International, LLC (RTDI), has determined that certain model year (MY) 1996-2014 Ride the Ducks International Stretch Amphibious passenger vehicles (APVs) do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 104,
Neil Dold, Office of Vehicle Safety Compliance, NHTSA, telephone: (202) 366-7352, facsimile (202) 366-5930.
I.
Notice of receipt of RTDI's petition was published in the
II.
III.
IV.
V.
RTDI described the subject noncompliance as the absence of a compliant windshield washer system and stated its belief that the noncompliance is inconsequential as it relates to motor vehicle safety.
In support of its petition, RTDI submitted the following reasoning:
1. FMVSS No. 104 specifies, in relevant part, that “each . . . [vehicle] shall have a windshield washing system that meets the requirements of SAE Recommended Practice J942 (1965).” 49 CFR 571.104, S4(a), S4.2.2. This FMVSS is designed to ensure that when activated, the windshield washing system is capable of reaching a sufficient portion of the exterior surface of the windshield, as designed by the manufacturer. The standard establishes minimum performance requirements for the windshield wiping and washing systems so that the vehicle operator is able to sufficiently see through the windshield. The APVs have features installed that are designed to achieve the same purpose as the standard. If there is debris present on the windshield, the driver is able to engage the vehicle's windshield wipers to clear the windshield's exterior surface. Further, the windshield of the APVs have a unique design that allows the driver to fully lower and raise the windshield glass. In the event that the windshield wipers could not clear the surface of the windshield, the driver has the option of lowering the windshield. Under either option, the visibility of the operator would not be compromised.
2. In the water portion of the vehicles' tours, the APVs are required to have the windshield lowered during operation, per U.S. Coast Guard regulations. The Coast Guard has recognized that in the event of an accident on the water, a raised windshield could impede passenger egress. Consequently, the Coast Guard has issued guidance which provides that the windshields of APVs be “designed to fold down with minimal force to allow egress.” U.S. Coast Guard Navigation and Inspection Circular (NVIC) 1-01, inspection of Amphibious Passenger Carrying Vehicles, p. 24. Further, the APV's exteriors, including the windshields, are washed after each tour, removing any debris that may have accumulated during the last tour.
3. From its inception, the Safety Act has included a provision recognizing that some noncompliances may pose little or no actual safety risk. The Safety Act exempts manufacturers from their statutory obligation to provide notice and remedy upon a determination by NHTSA that a noncompliance is inconsequential to motor vehicle safety.
RTDI concluded by expressing the belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety, and that its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
VI.
a. As per U.S. Coast Guard NVIC 1-01 “Guidelines for the Certifications of Amphibious Vessels,” for the purposes of emergency egress the windshields of APVs should be designed to fold down with minimum force. The RTDI vehicles' front windshields are hinged at the bottom and there is a mechanical lever linked to the windshield frame. To quickly and safely lower or open the windshield, the driver simply lifts upward or pulls downward on the mechanical lever. The action of lowering and raising the windshield takes little effort as there are gas springs incorporated into the hinge which minimizes the weight and force involved in operating the windshield. Testing revealed the highest peak measurement at 22.6 lbs. of force. RTDI drivers often open the windshield when the vehicle is stopped or in slow moving heavy traffic and at a low rate of speed to allow fresh air into the driver and passenger space. The U.S. Coast Guard inspects and tests the windshield opening feature annually.
b. RTDI has established operational safety guidelines for the use of the drivers open/close feature. RTDI's guidelines states that an operator should not open the windshield “unless the visibility through the windshield becomes obstructed, the opening and closing of the front windshield should only take place when the vehicle is traveling at a slow rate of speed (
VII.
The burden of establishing the inconsequentiality of a failure to comply with a
An important issue to consider in determining inconsequentiality based upon NHTSA's prior decisions on noncompliance issues was 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.
For safe viewing through the front windshield, FMVSS No. 104 requires both a windshield wiping system and a washing system. The Agency believes that both systems are critical, and at times must work together, to ensure a clear view through the windshield. The purpose of the washing system is to aid the wiping system in the event that dust, dirt, mud, or other obstructions occur and the wipers are not sufficient to quickly and properly clear the windshield.
RTDI stated that the features of the APVs achieve the same purpose as the standard without a windshield washing system. According to RTDI, if debris is present on the windshield the driver can engage the windshield wiping system to clear the windshield exterior surface. RTDI also explained that in the event the windshield wipers could not clear the surface of the windshield the driver has the option of lowering the windshield.
The Agency does not agree with RTDI's assessment that the subject APVs are designed to achieve the same purpose as the standard without a windshield washing system. The Agency understands that these vehicles can be operated on public roadways at speeds up to 50 miles per hour. It is not uncommon while traveling at posted speeds to encounter conditions where the windshield wipers and the washing system must be used together to maintain forward visibility through the windshield. One good example of such a condition occurs shortly after a rain shower has ended, the roads are still wet, and other vehicles operating on the roadway are throwing up water spray and road dirt that can accumulate on following vehicle windshields. In this situation, both the windshield wipers and windshield washing systems would be required for safe operations.
Furthermore, in a follow-up response to a request from the Agency, RTDI informed the Agency that its safety guidelines only permit the driver to open and close the windshield should visibility become obstructed, and only when the vehicle is traveling at a slow rate of speed or is stopped. Thus, if the vehicle is moving at higher speeds under conditions as mentioned above, the Agency believes it would present a safety concern to lower the windshield.
VIII.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of virtual public meeting and forum.
This notice announces a virtual public meeting and forum titled: “Pipeline Transportation and Emerging Fuels R&D Public Meeting and Forum.” The public meeting and forum will serve as an opportunity for pipeline stakeholders to discuss research gaps and challenges in pipeline safety and emerging fuels, including hydrogen transportation. Furthermore, it will also serve as a venue for PHMSA, public interest groups, industry, academia, intergovernmental partners, and the public to collaborate on PHMSA's future R&D agenda.
The Pipeline Transportation and Emerging Fuels R&D Public Meeting and Forum will be held November 30, 2021, through December 2, 2021. Members of the public who wish to attend the public meeting and forum must register between October 15, 2021, and November 15, 2021. Individuals requiring accommodations, such as sign language interpretation or other aids, are asked to notify PHMSA no later than November 1, 2021. Individuals will have an opportunity on a first come first
This public meeting and forum will be held virtually. The agenda and instructions on how to attend virtually will be published once they are finalized on the following public meeting registration page at:
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Nathan Schoenkin by phone at 202-740-1978 or via email at
The mission of PHMSA is to protect people and the environment by advancing the safe transportation of energy products and other hazardous materials that are essential to our daily lives. PHMSA oversees the transportation of hazardous materials, including energy products, through all modes of the transportation industry—and is focused on the Biden-Harris Administration's whole-of-government approach to mitigating climate change. PHMSA collaborates with stakeholders from the public, academia, interagency, international partners, and pipeline industry that share PHMSA's goal of advancing knowledge and technology in the pursuit of improved pipeline safety. The PHMSA's research agenda will adapt to address existing and future initiatives such as the market shift to more climate friendly commodities.
Due to the importance of energy products and other hazardous materials to our economy and standard of living, it is essential that research projects promote safety, protection of the environment, reliability, and ensure our transportation system's efficient and reliable performance. To this end, PHMSA hopes to discuss and receive public feedback on repair, rehabilitation, or replacement of leak prone, legacy cast iron pipelines; integrity of underground fuel storage including hydrogen; utilization of inspection tools and network components on hydrogen pipeline facilities; integrity management of natural gas and hazardous liquids pipeline to include carbon dioxide lines; and methane mitigation from pipeline infrastructure.
The virtual meeting and forum will take place November 30, 2021, through December 2, 2021. The first day of the virtual public meeting will include panel discussions in a general session between government, industry, research consortiums, and environmental advocacy stakeholders on emerging fuels and pipeline safety R&D. Each panel discussion will include an opportunity for questions and answers.
The second day will be the virtual public forum which will consist of smaller workgroups that members of the public will have an opportunity to sign up for in advance. The workgroups will explore specific research gaps and topics, including the transportation of hydrogen by pipelines, and develop relevant research topics to address the gaps. The third day of the virtual public meeting will be a report from the workgroups as well as a public comment period.
The virtual public meeting and forum will be open to the public. Members of the public who wish to attend must register on the meeting website and include their names and organization affiliation. PHMSA is committed to providing all participants with equal access to these meetings. If you need disability accommodations, please contact Nathan Schoenkin by phone at 202-740-1978 or via email at
PHMSA is not always able to publish a notice in the
PHMSA invites public participation and public comment on the topics addressed in this public meeting and forum. Please review the
Bureau of Transportation Statistics (BTS), Office of the Assistant Secretary for Research and Technology (OST-R), U.S. Department of Transportation.
Notice of request to continue to collect.
In accordance with the requirements of the Paperwork Reduction Act of 1995, this notice announces the intention of BTS to request the Office of Management and Budget (OMB) to approve the data collection for: Oil and Gas Industry Safety Data. In August 2013, the Bureau of Safety and Environmental Enforcement (BSEE) and BTS signed an Interagency Agreement to develop and implement SafeOCS, a voluntary program for confidential reporting of `near misses' occurring on the Outer Continental Shelf (OCS). The Oil and Gas Industry Safety Data (ISD) program, is a component of BTS's SafeOCS data sharing framework, that provides a trusted, proactive means for the oil and gas industry to report sensitive and proprietary safety information, and to identify early warnings of safety problems and potential safety issues by uncovering hidden, at-risk conditions not previously exposed from analysis of reportable accidents and incidents. Companies participating in the ISD are voluntarily submitting safety data, there is no regulatory requirement to submit such data.
Written comments should be submitted by December 20, 2021.
To ensure that your comments are not entered more than once into the docket, submit comments by only one of the following methods:
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Identify all transmission with “Docket Number DOT-OST-XXXX-XXXX” at the beginning of each page of the document.
Demetra V. Collia, Bureau of Transportation Statistics, Office of the Assistant Secretary for Research and Technology, U.S. Department of Transportation, Office of Statistical and Economic Analysis, RTS-31, E36-302, 1200 New Jersey Avenue SE, Washington, DC 20590-0001; Phone No. (202) 366-1610; Fax No. (202) 366-3383; email:
In accordance with these confidentiality statutes, only statistical (aggregated) and non-identifying data will be made publicly available by BTS through its reports. BTS will not release to BSEE or any other public or private entity any information that might reveal the identity of individuals or organizations mentioned in failure notices or reports without explicit consent of the respondent and any other affected entities.
The ISD identifies a broader range of data categories to ensure safe performance and appropriate risk management, which adds a learning component to assist the oil and gas industry in achieving improved safety performance. BTS will: Be the repository for the data, analyze and aggregate information given under this program, and publish reports providing identification of potential causal factors and trends or patterns before safety is compromised, and affording continuous improvement by focusing on repairing impediments to safety.
The Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35; as amended) and 5 CFR part 1320 require each Federal agency to obtain OMB approval to initiate an information collection activity. BTS is seeking OMB approval to continue to collect the following new data:
Working with subject matter experts, BTS will then aggregate and further analyze these reports to identify potential causal factors and trends. All data reviewers would be subject to non-disclosure requirements and training mandated by CIPSEA. The results of these aggregated analyses will be distributed by BTS through public reports, workshops, and other forms. Periodic industry workshops may be scheduled by BSEE/industry to discuss the data analysis and trend results, as well as share ideas and process improvements for preventing recurrence.
The goal of the Oil and Gas Industry Safety Data program is to provide BTS with essential information about accident precursors and other hazards associated with the Outer Continental Shelf (OCS) oil and gas operations including but not limited to exploration and production (E&P.) This program collects voluntarily reported safety data.
A related goal of the ISD is to provide a mechanism whereby participating companies can submit safety data in whatever format they currently use to minimize incremental effort on the company's part. To realize the optimum benefits from an industrywide framework, all organizations associated with offshore E&P operations (operators, contractors, subcontractors, suppliers/OEMs) and/or regulatory agencies are encouraged to submit data voluntarily.
BTS conducted an Industry Safety Data (ISD) program pilot, in 2017-2018 with data from 2014 through 2017 with representatives from nine companies, which included seven operators, one drilling contractor and one service company. Within this program, all companies working in the Gulf of Mexico (GOM) joining the ISD would submit data for safety events occurring after January 1, 2018. During the pilot, a Phase I Planning Team, formed by BTS, consisted of representatives from the pilot companies working in the GOM who expressed interest in participating as early implementers for the suggesting enhancements to the SafeOCS program. This team discussed the type of data that should be submitted to ensure the data captured has appropriate learning value. The scope of data reported includes incidents, near misses, stop work events, and associated metadata for the period 2014 through 2017. The aggregated data was reviewed and analyzed, and the results were shared with the public in a report was released in 2019.
The value proposition of the ISD program is its focus on the continual improvement in safety performance, and its implementation of lessons learned from incidents and events that occur within the oil and gas industry. This is particularly important for major hazards and associated prevention/mitigation barriers. Several key aspects of this effort include:
• Continue efforts to build and maintain a central repository for collection, collaboration, and sharing of learnings of safety-related data,
• Identifying the type of data that will provide valuable information,
• Gaining alignment on incident and indicator definitions,
• Continuing to maintain a secure process for collection and analysis of the data,
• Implementing a robust methodology for identifying systemic issues,
• Disseminating the results to stakeholders who can then take actions to reduce or eliminate the risk of recurrence through greater barrier integrity,
• Providing opportunities for stakeholders to network and benchmark performance, both individually and as an organization, and
• Setting up a framework wherein adverse actions cannot legally be taken against data submitters nor can raw data be used for regulatory development purposes.
One other related goal of the ISD program is to provide a mechanism whereby participating companies can submit safety data in whatever format they currently use to minimize incremental effort on the company's part.
One of the key benefits associated with submitting safety data directly to BTS for aggregation and review, is that it addresses concerns related to protection of the data source. SafeOCS, including the ISD, operates under a Federal law, the Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA), which requires the program to protect the identity of the reporter and treat reports confidentially. Information submitted under CIPSEA is also protected from release to other government agencies, Freedom of Information Act (FOIA) requests, and subpoena. Even regulatory agencies such as BSEE cannot have access to the identity of those submitting reports under the program. In addition, the information from individual records cannot be used for enforcement purposes. CIPSEA is subject to strict criminal and civil penalties for noncompliance.
Once data are aggregated, BTS will analyze safety data reports submitted by companies involved in OCS activities. BTS will also work with subject matter experts to further analyze these reports to identify potential causal factors and trends. The results of these aggregated analyses will be distributed by BTS through public reports. Industry workshops may then be scheduled to allow operators, service companies, drilling contractors, regulators, and other stakeholders to discuss the results and share lessons learned.
This data collection provides participating members within the oil and gas industry, a trusted means to report sensitive proprietary and safety information related to operations in the OCS, and to foster trust in the confidential collection, handling, and storage of the raw data. BTS uses the data collected to build a comprehensive source of safety related data for statistical purposes. With input from subject matter experts, information on incidents, near misses, stop work events, and associated metadata are analyzed, and results of such analyses are published. These reports provide the industry, all OCS stakeholders, and BSEE with essential information about critical safety issues for offshore operations and production.
BTS will also establish a Disclosure Review Board to review reports and other data products produced by the Data Review Team in accordance with CIPSEA disclosure requirements, with expected compliance principles and practices of a statistical agency. A senior level review of reports prior to publication will be conducted by a Senior Review Board, that may include representatives from key government agencies, wherein all members of this review board are designated as Agents under CIPSEA. The BTS Director or Deputy Director will review all analyses and reports, and issue approval for publication. While BTS's direct
BTS requests comments on any aspects of this information collection request, including: (1) Ways to enhance the quality, usefulness, and clarity of the collected information; and (2) ways to minimize the collection burden without reducing the quality of the information collected, including additional use of automated collection techniques or other forms of information technology.
Bureau of Engraving and Printing, Department of the Treasury.
Notice of availability (NOA).
The U.S. Department of the Treasury (Treasury), Bureau of Engraving and Printing (BEP) announces the availability of the Record of Decision (ROD) for the proposed construction and operation of a Currency Production Facility (CPF) within the National Capital Region (NCR) (Proposed Action). Treasury previously published its Final Environmental Impact Statement (EIS) for the Proposed Action on June 4, 2021.
In accordance with the National Environmental Policy Act (NEPA), the ROD identifies all alternatives Treasury considered for the Proposed Action, identifies the environmentally preferable alternative, states Treasury's decision to implement the Preferred Alternative, and discusses factors balanced by the agency in making its decision. The ROD also adopts all practicable mitigation measures to avoid or minimize environmental harm and commits to monitoring their implementation. The Proposed Action will replace Treasury's insufficient Washington, DC production facility (DC Facility), and will provide Treasury with a modern, scalable, sufficiently sized production facility within the NCR that meets Treasury's needs. Treasury has also signed a Finding of No Practicable Alternative (FONPA) addressing potential impacts on wetlands Executive Order 11990,
Treasury's Acting Assistant Secretary for Management signed the ROD on October 8, 2021.
Electronic copies of the ROD, Final EIS, FONPA, and other related materials are available on the project website at
Please contact Mr. Harvey Johnson, USACE—Baltimore, Programs and Project Management Division: (1) By email to:
BEP's mission includes manufacturing U.S. currency notes; research, development, testing, and evaluation of counterfeit deterrents; and development of production automation technologies. Treasury currently operates two production facilities for this purpose: The DC Facility and a facility in Fort Worth, Texas. The DC Facility has been in operation for more than 100 years and is neither able to support modern currency production nor able to support Treasury's, and specifically the BEP's, current and future mission.
Within the DC Facility, manufacturing processes are inefficient and inflexible. The DC Facility's configuration poses safety risks to staff, and the downtown location of the DC Facility prevents Treasury from complying with physical security standards. The condition, configuration, and location of the DC Facility severely limit Treasury's ability to modernize the DC Facility through renovation, rendering modernization of existing facilities an untenable long-term solution.
Over the past 20 years, Treasury has considered several scenarios to address the inadequacy of its current facilities in the NCR, including renovation of the DC Facility and new construction within the NCR. Treasury concluded that construction of a new replacement CPF, as opposed to renovation of the DC Facility, was the most efficient and cost-effective option. As such, Treasury, on behalf of the BEP, proposed to construct and operate a new CPF within the NCR to replace its existing DC Facility. The Proposed Action will provide Treasury with a modern, scalable, sufficiently sized production facility, resulting in more efficient, streamlined currency production, while allowing Treasury to maintain its presence within the NCR.
Treasury's Final EIS analyzed the potential environmental, cultural, and socioeconomic impacts associated with the Proposed Action, including cumulative effects. Minimization of adverse effects through avoidance and environmentally sensitive design will be used to avoid impacts to sensitive resources to the maximum extent practicable. Where these efforts are not sufficient to avoid adverse effects, the Final EIS identified additional mitigation measures that Treasury may implement to further reduce identified adverse impacts. The ROD identifies the mitigation measures that Treasury formally commits to implement and monitor.
In support of the EIS, Treasury, with assistance from USACE, conducted site-specific studies in accordance with federal and state requirements, such as Sections 404/401 of the Clean Water Act (CWA) and Section 106 of the National Historic Preservation Act.
As part of the planning process, Treasury gathered data on numerous potential sites in the NCR that had the potential to support Treasury's initial minimum criteria for construction of a new CPF. Treasury evaluated each potential site against various screening criteria to identify reasonable alternatives. Following an extensive and thorough screening process, Treasury identified one reasonable Action Alternative (the Preferred Alternative) that would meet the purpose of and need for the Proposed Action. This Preferred Alternative is summarized below and analyzed in detail in the Final EIS.
This alternative includes a 104.2-acre parcel of land located in BARC's Central Farm in the 200 Area building cluster (Treasury's proposed parcel). The parcel is located in Prince George's County, Maryland, between Odell Road to the north and Powder Mill Road to the south; Poultry Road runs north to south through the parcel. The parcel, generally
Treasury also carried forward the No Action Alternative for detailed analysis in the Final EIS. While the No Action Alternative would not satisfy the purpose of or need for the Proposed Action, Treasury retained this Alternative to provide a comparative baseline against which to analyze the effects of the Preferred Alternative as required under the Council on Environmental Quality's NEPA regulations (40 Code of Federal Regulations 1502.14[c]).
Resource areas analyzed in the Final EIS include: Land use; visual resources; air quality; noise; topography and soils; water resources; biological resources; cultural resources; traffic and transportation; utilities; socioeconomics and environmental justice (EJ); hazardous and toxic materials and waste; and human health and safety. Treasury dismissed air space, recreation, and geology from detailed study. Treasury determined the Proposed Action has no potential to cause significant adverse impacts to these resource areas.
Based on the Final EIS analysis, without implementation of mitigation measures, significant adverse impacts could occur to visual resources, water resources, cultural resources, traffic and transportation, and EJ communities (
The Preferred Alternative for the Proposed Action will also adversely impact wetlands. Accordingly, Treasury has prepared a FONPA to comply with Executive Order 11990. As described in the Final EIS and ROD, regulatory compliance measures (
A Notice of Intent to prepare an EIS for the proposed project was published in the
Treasury has taken into consideration information and analyses presented in the Final EIS, including potential environmental impacts and recommended mitigation measures; supporting studies; consultation with agencies and Native American Tribes; and the comments received from the public during formal review and comment periods. Treasury has also evaluated our national currency production needs, the BEP's mission requirements, and the purpose of and need for the Proposed Action. Based on these considerations, it is the decision of Treasury to implement the Preferred Alternative and the associated mitigation measures as outlined in the ROD.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Request for Prompt Assessment Under Internal Revenue Code Section 6501(d).
Written comments should be received on or before December 20, 2021 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, at (202) 317-5753, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Postal Service
Final rule.
The Postal Service revises its regulations in Publication 52,
This rule is effective October 21, 2021.
Dale E. Kennedy, Director, Product Classification, at 202-268-6592.
The Postal Service hereby amends Publication 52,
On February 19, 2021, the Postal Service published a notice of proposed rulemaking (86 FR 10218) to implement the Preventing Online Sales of E-Cigarettes to Children Act (“POSECCA”), Public Law 116-160, div. FF, title VI (2020). Section 602 of the POSECCA adds “electronic nicotine delivery systems” (“ENDS”) to the definition of “cigarettes” subject to regulation under the Jenkins Act, codified at 15 U.S.C. 375
The statutory framework into which ENDS must now fit was established by the Prevent All Cigarette Trafficking Act of 2009 (“PACT Act”), Public Law 111-154, sec. 3, 124 Stat. 1087, 1103-1109 (2010), codified at 18 U.S.C. 1716E. Briefly, the PACT Act allows cigarettes and smokeless tobacco to be mailed only in the following circumstances:
Nonmailable cigarettes and smokeless tobacco deposited in the mail are subject to seizure and forfeiture. 18 U.S.C. 1716E(c). Senders of nonmailable cigarettes or smokeless tobacco are subject to criminal fines, imprisonment, and civil penalties, in addition to enforcement under other Federal, State, local, and Tribal laws.
In inviting public comment, the notice of proposed rulemaking highlighted certain topics on which comments would be especially helpful: The definition of ENDS, appropriate “catch-all” terminology, standards for determining mailability, and the potential applicability of the PACT Act's exceptions, particularly the Consumer Testing and Public Health exceptions. 86 FR 10219-10220. We received more than 15,700 comments on these and other topics, most of which appear to be electronically generated form letters and general expressions of ENDS users' dissatisfaction with the POSECCA.
In considering the comments, and in view of Congress's abrogation of the standard 30-day notice period for a final rule under the Administrative Procedure Act (“APA”), see
ENDS products are generally nonmailable, except as authorized by an exception, and then only if all PACT-Act-related and non-PACT-Act-related conditions of mailability are met. Congress did not grant the Postal Service authority to make policy decisions to waive or defer the operation of the POSECCA, to create new PACT Act exceptions, or to expand, restrict, or modify the scope of existing exceptions, beyond the reasonable application of the conditions enumerated in the PACT Act.
ENDS products comprise (1) any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device; and (2) any component, liquid, part, or accessory of an ENDS, regardless of whether sold separately from the device. This statutory definition resides in the Jenkins Act, which is administered by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), and inquiries about whether specific products are covered should be directed to ATF. Provisionally, however, certain aspects of the definition are apparent from the plain statutory language, such as that a user must inhale from the device and that a covered ENDS product must be, or be capable of use with, a liquid solution. At the same time, Congress expressly provided that covered ENDS products extend beyond nicotine-related use, as relevant products may deliver “nicotine, flavor, or any other substance.”
The POSECCA excludes from the mailing ban any ENDS product that is approved by the U.S. Food and Drug Administration (“FDA”) for sale as tobacco cessation products or for other therapeutic purposes and marketed and sold solely for such purposes. At this time, the FDA has not approved any such devices or drugs.
The statutory parameters for the Intra-Alaska/Intra-Hawaii, Business/Regulatory Purposes, and Certain Individuals exceptions are compatible with and administrable for ENDS products, and so they will be made available for such products.
The preexisting centralized application process for the Business/Regulatory Purposes exception will be extended to ENDS products, albeit with certain modifications to improve administration. Other, statutorily-derived requirements relating to acceptance and delivery will apply to ENDS products in like manner to cigarettes and smokeless tobacco. For example, approved shippers of Business/Regulatory Purposes mailings must use specified product combinations that allow for age and identity verification at delivery (
The Certain Individuals exception will apply to ENDS products, subject to all of the same frequency, weight, age-verification, and other conditions that apply to other shipments covered by the PACT Act. By statute, this exception applies to qualifying shipments by individual adult mailers without regard to the nature of the recipient entity, expressly including the return of damaged or unacceptable products to manufacturers. Among other conditions, however, the statute limits the exception to shipments for noncommercial purposes. Thus, the compatibility of ENDS manufacturers' recycling programs with this exception may depend on whether such programs are structured so as not to involve any exchange of commercial value. The final rule also clarifies the standard for noncommercial purposes in the context of returns of damaged or unacceptable products, to the effect that any value provided in exchange for the returned item cannot exceed that which would restore the sender to the status quo ante.
As for the Consumer Testing and Public Health exceptions, it is apparent that Congress intended those exceptions to apply only to combustible cigarettes, and not to ENDS products or smokeless tobacco. First, the Consumer Testing exception is statutorily restricted to cigarette manufacturers with a permit under section 5713 of the Internal Revenue Code (“IRC”), which does not apply to ENDS manufacturers. Second, shipments under the Consumer Testing exception (and, by extension, the Public Health exception) are expressly limited to specified quantities of “packs of cigarettes” containing 20 cigarettes each. This standardized quantification is meaningful in the context of combustible cigarettes, but not in the context of ENDS products or smokeless tobacco. Upon consideration of the public comments, there does not appear to be a workable standard by which to apply this material condition for the Consumer Testing and Public Health exceptions to ENDS products, notwithstanding their treatment as “cigarettes” for broader purposes of the PACT Act. Given this context-based plain reading of the statute and the narrow construction typically due exceptions, the Postal Service concludes that current law does not support applying these exceptions to ENDS products.
Upon original implementation of the PACT Act, the Postal Service determined that the PACT Act exceptions cannot feasibly be applied to inbound or outbound international mail or to mail to or from the Freely Associated States. The Postal Service cannot fulfill the PACT Act's verification requirements in locations where it does not interact directly with shippers and addressees. Nothing has changed in that regard. As such, all cigarettes and smokeless tobacco in such mail will continue to be nonmailable, without exception, and the same will be true of ENDS products.
Moreover, consultation with partner agencies regarding the PACT Act's requirements and the availability of relevant postal services has indicated that the statutory prerequisites for the PACT Act's exceptions cannot reliably be fulfilled at overseas U.S. military postal addresses. Thus, while shipments from such installations to the United States were already ineligible for any PACT Act exceptions, shipments from the United States to such installations must likewise be ineligible for the exceptions at this time.
The Postal Service received more than 15,700 responses to the notice of
A large number of ENDS consumers, ENDS shippers, and some law students (collectively, “pro-ENDS commenters”) urged the Postal Service not to subject ENDS products to the PACT Act. As rationales, these commenters invoked the purported public benefits associated with ENDS products; the impact of a mailing ban on businesses and the Postal Service; the possibility of unanticipated and even perverse economic, distributive, and public-health effects of a mailing ban; doubts about the role that the mails may play in youth access to ENDS products (perceived to be the policy motivation for the mailing ban); skepticism about enforceability;
A number of ENDS consumers and shippers also proposed that the Postal Service implement some alternative method of regulating the mailability of ENDS products, in lieu of the PACT Act's ban and exceptions. Proposals included the following:
• Permit the mailing of ENDS products with age verification of recipients.
• Permit the mailing of ENDS products with warning labels.
• Permit the mailing of ENDS products under the same conditions provided for non-postal delivery channels under the Jenkins Act (as amended by section 2 of the PACT Act).
• Allow the ENDS industry to regulate itself, subject to a requirement to conduct age verification of consumers.
• Limit mailability to ENDS products containing less than a specified threshold of nicotine.
• Limit mailability to non-nicotine-containing ENDS products.
• Limit mailability to single-use ENDS products.
• Scale mailability restrictions according to a policy-based hazard assessment of the product, shipper, and recipient.
In addition, some public-health-oriented commenters and law students, as well as some Federal agency partners with which the Postal Service consulted, proposed that the Postal Service ensure that ENDS products can be shipped in circumstances not covered by any statutory exception, such as between public-health researchers and individual test subjects; between governmental actors for enforcement, investigative, or testing purposes; and from the government to non-governmental public-health entities. These commenters invoked the interests of promoting public-health research into and effective regulation of ENDS products. Many of these stakeholders also urged the Postal Service to allow use of the Public Health exception for ENDS products on policy grounds and to allow ENDS-industry businesses to ship ENDS products to governmental actors for any regulatory purpose, without regard to the statutory parameters of the existing PACT Act exceptions.
Finally, a number of commenters of varying orientations—including some in the ENDS industry—acknowledged that the POSECCA charges the Postal Service merely with incorporating ENDS products into the existing PACT Act framework, rather than authorizing it to revisit and alter that framework.
The latter group of commenters is correct: In this context, the Postal Service lacks the authority to adopt a regulatory scheme different from what Congress has prescribed. In general, the Postal Service, as part of the Executive Branch, is bound to faithfully execute the laws enacted by Congress and can act only within the scope of discretion that Congress has delegated to it. U.S. Constitution article I, section 1;
Neither the PACT Act nor the POSECCA includes any provision authorizing the Postal Service to waive the mailing ban for ENDS products or any other subcategory of “cigarettes,” with or without other regulatory conditions devised by the Postal Service (
Congress could have left ENDS products mailable, subjected them to alternative restrictions (as section 2 of the PACT Act does for non-postal delivery carriers), or delegated authority to the Postal Service to grant waivers, create new exceptions, or devise some other appropriate mailability scheme. Cf. 18 U.S.C. 1716(b)-(e) (authorizing the Postal Service to permit or limit the mailing of potentially hazardous materials); 39 U.S.C. 3018(b) (giving the Postal Service discretion to declare hazardous materials to be nonmailable or to restrict the time, place, and manner of their mailing). Yet Congress did none of those things. Instead, it chose to bar the Postal Service from carrying ENDS products, except pursuant to a limited set of specifically delineated statutory exceptions. See
In sum, arguments to relax the PACT Act's application to ENDS products on policy grounds are misdirected to the Postal Service. Whatever the merits of ENDS products generally or the anticipated effects of the POSECCA, the forum for that debate is Congress, which has declined to delegate, and thus has reserved to itself, policy discretion over the pertinent parameters.
Conversely, some public-health-oriented commenters, State and local attorneys general, law students, and other individual commenters (collectively, “anti-ENDS commenters”) urged the Postal Service to deny or restrict the application of the PACT Act's exceptions to ENDS products, due to concerns about hazardous materials, controlled substances, public health, youth access, and the purported risk of circumventing law enforcement.
For the reasons discussed in the preceding section, neither the PACT Act nor the POSECCA authorizes the Postal Service to make policy judgments to narrow or rescind the availability of the statutory exceptions. Cf. 18 U.S.C. 1716(d)-(e). The parameters of the exceptions are expressly set forth in the statute. Notwithstanding some limited interpretive and administrative latitude in implementing the statute, the Postal Service cannot repeal, disregard, or amend the statute's explicit parameters on policy grounds. Like policy arguments to relax the PACT Act for ENDS products, policy arguments to tighten it should be directed to Congress, not the Postal Service. See
Moreover, the public-health and worker-safety concerns raised by certain public-health-oriented commenters are already addressed by statutes and regulations independent of the PACT Act. As noted in the April 2021 Guidance, ENDS products that constitute controlled substances or drug paraphernalia are nonmailable regardless of whether the PACT Act would also preclude mailability. 21 U.S.C. 843(b)-(c), 863; Publication 52 part 453; see 86 FR at 20289.
Likewise independently of the PACT Act's application, liquids and hazardous materials are also nonmailable to the extent that the shipper has not observed applicable mailing requirements and restrictions. 18 U.S.C. 1716(a), (h); 39 U.S.C. 3018; DMM section 601.3.4; Publication 52 chapter 3 & parts 451, 711-728 & app. A, C; see 86 FR at 20289. The hazardous-materials rules already embody determinations by the Department of Transportation, the Postal Service, and other relevant authorities about how to balance worker safety against commercial interests, resulting in, for example, differing levels of restriction and mailing requirements for differing concentrations of nicotine.
That said, the public-health-oriented commenters rightly point out that the broad array of covered ENDS products is more likely than cigarettes and smokeless tobacco to implicate mailability rules outside of the PACT Act. ENDS products include or may contain lithium batteries, as well as nicotine and other chemicals that are flammable or toxic. See April 2021 Guidance, 86 FR at 20289; Harmful and Potentially Harmful Constituents in Tobacco Products; Established List; Proposed Additions; Request for Comments, 84 FR 38032, 38033-38034 (2019). Once again, all mailers, including businesses, individuals, and governmental entities that may ship ENDS products pursuant to the PACT Act's exceptions, are strongly encouraged to review and comply with all pertinent statutes and Postal Service regulations.
Some pro-ENDS commenters proposed that, if the Postal Service does implement the mailing ban, the Postal Service should defer its effective date or exercise its enforcement discretion to effectively allow the continued mailing of ENDS products for some period (
The Postal Service lacks discretion as to the effective date. The POSECCA expressly provides that the prohibition will apply to mailings of ENDS “on and after” the publication date of the final rule. POSECCA section 603(b). If anything, it is the effective date of any applicable PACT Act exceptions, and not the PACT Act's general mailing ban, about which the POSECCA is silent. Whatever transition-related challenges that the POSECCA's effective date might pose on the industry (despite having had an extended period to prepare for the mailing ban), Congress conferred no authority on the Postal Service to derogate from the requirement that the final rule have immediate effect.
As for enforcement discretion, the scope of the Postal Service's enforcement discretion under the PACT Act is the subject of ongoing litigation. See generally
A number of pro-ENDS commenters advanced various theories as to the supposed unconstitutionality of the POSECCA and the proposed implementing regulations: They would impair the rights of adults to receive ENDS through the mails; the law is too vague; and the POSECCA is overbroad in its impact on adult users of ENDS products, not only minors.
As an initial matter, the constitutionality of the POSECCA has no bearing on the Postal Service's obligation to execute it. As discussed in section III.A.1, the Constitution requires the Postal Service, as an entity within the Executive Branch, to faithfully execute the laws. U.S. Constitution article II, section 3. By contrast, “it is, emphatically, the power and duty of the [Judicial Branch], to say what the law is.”
That said, by all indications, the relevant statutes appear to be constitutional. Congress has plenary powers to enact laws governing the postal system, as well as to regulate interstate commerce and commerce with foreign and Tribal nations. U.S. Constitution article I, section 8, clauses 3, 7. In exercising those powers, Congress's authority to ban a class of products from the mails—even those that are legal in all States and that are not harmful to Postal Service personnel—is well-established: Indeed, Congress has historically done so with a number of other such products.
Given Congress's plenary power over the very existence of the postal system, it cannot be said that there is a fundamental right to mail any particular item, let alone ENDS products, and shippers or users of ENDS products do not constitute a protected class any more than shippers or users of cigarettes or smokeless tobacco.
It does not require much to conceive of a legislative rationale in this case. Although the task is “by no means restricted to the stated reasons for passing a law,” the statute here expressly offers multiple rational bases for a mailing ban on ENDS products. See
By modifying the PACT Act's definition of “cigarettes” to extend to ENDS products, the 116th Congress effectively incorporated ENDS products into the statement of findings and purposes underlying the PACT Act. Public Law 111-154, sec. 1(b)-(c), 124 Stat. 1087-1088. For example, the 116th Congress presumably believed that “the sale of illegal cigarettes [now including ENDS products] and smokeless tobacco over the internet, and through mail, fax, or phone orders, makes it cheaper and easier for children to obtain tobacco products” and that a mailing ban would “prevent and reduce youth access to inexpensive cigarettes [including ENDS products] and smokeless tobacco through illegal internet or contraband sales”: Indeed, the title of the POSECCA and the relevant House committee report indicate as much.
Contrary to the commenters' overbreadth argument, the PACT Act's purposes are not limited to youth access. Other stated purposes of the PACT Act—combating illegal trafficking, circumvention of state and local laws, and unfair competition with law-abiding retailers—implicate adult as well as youth consumers and can apply as easily to ENDS products as to cigarettes and smokeless tobacco. See
So, too, can Congress's judgment that an outright ban on the mailing of ENDS products, notwithstanding the applicability of other, more targeted requirements and enforcement opportunities, is necessary to address these harms.
As discussed in section III.D.1.iii, many pro-ENDS commenters questioned the evidence of legislative intent to ban the mailing of ENDS products that do not contain nicotine. For purposes of the constitutionality discussion here, it is noted that plain language of the statute makes that intent clear, and the legislative history does, in fact, attest to the framers' public-health concerns in relation to non-nicotine-related ENDS products. Even without such expressions of intent, however, there would certainly be a rational basis for Congress to have specified the POSECCA's breadth as it did. Given operational and legal constraints, it is not simple—indeed, it is generally impossible—for Postal Service personnel prohibited from accepting or transmitting ENDS products to distinguish liquids that contain nicotine from those that do not, and it is equally difficult for acceptance personnel to distinguish devices intended to be used with nicotine-containing versus non-nicotine-containing liquids. Even barring any more specific motive for banning non-nicotine-related ENDS products from the mails, it would be conceivable that Congress intended to ensure effective enforcement against nicotine-related ENDS products, rather than letting a safe harbor for non-nicotine-related ENDS products get in the way of advancing Congress's nicotine-related policy concerns.
Again, however, such speculation is unnecessary, because the youth-access and public-health concerns underlying the POSECCA were not restricted to nicotine. The relevant House committee report cites information from the Centers for Disease Control and Prevention (CDC) about lung injuries associated with the use of ENDS
Turning to the vagueness contention, it is difficult to see what is “vague” about the POSECCA or the PACT Act. The POSECCA makes nonmailable (with exceptions) “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device,” as well as “any component, liquid, part, or accessory” of such a device. 15 U.S.C. 375(7)(A), (7)(B)(vii). While certain terms may benefit from interpretation pursuant to well-established principles of administrative law, it cannot be said that the statute fails to give the public or law-enforcement agencies reasonable notice about what is prohibited. If anything, the POSECCA definition is more prescriptive than some other longstanding mailability statutes. Cf. 18 U.S.C. 1716(a) (“hazardous materials, inflammable materials, infernal machines, and mechanical, chemical, or other devices or compositions which may ignite or explode, . . . and all other natural or artificial articles, compositions, or material which may kill or injure another, or injure the mails or other property”);
For all of these reasons, the Postal Service maintains that it is not constitutionally barred from executing the POSECCA.
Multiple pro-ENDS commenters noted the FDA's definition of ENDS as noncombustible tobacco products, asserted that the FDA has confined the scope of its regulations to devices intended to be used with nicotine-containing ENDS liquids, and urged us to harmonize the POSECCA's ENDS definition with this purported FDA policy. At least one commenter pointed to the POSECCA's rule of construction, which provides that the POSECCA definition shall not “be construed to affect or otherwise alter any provision of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301
As an initial matter, the Federal Food, Drug, and Cosmetic Act (“FD&C Act”) and the PACT Act (as modified by the POSECCA) govern different subjects. Under the FD&C Act, the FDA regulates the manufacturing, marketing, and distribution of tobacco products to protect the public health. FDA regulation of tobacco products is not necessarily tied to a given distribution method. By contrast, the relevant portion of the PACT Act governs whether such products—following or pending authorization for interstate commerce—may be sent through the federally administered postal system, or whether they may be transported only through non-postal channels. Indeed, section 2 of the PACT Act provides that covered items may be carried through non-postal delivery channels, so long as carriers and sellers comply with various requirements. Although nonmailability may influence the practicalities of interstate commerce (
The FDA's regulation of ENDS emanates from a statutory framework regarding tobacco products that is unrelated to and distinct from the POSECCA. More specifically, the Family Smoking Prevention and Tobacco Control Act (“Tobacco Control Act”), Public Law 111-31, granted the FDA the authority to regulate tobacco products by, among other things, adding Chapter IX (Tobacco Products) to the FD&C Act, 21 U.S.C. 387a. Section 901 of the FD&C Act provides that this chapter applies to cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco, as well as to any other tobacco products that the Secretary of Health and Human Services by regulation deems subject to it. It is pursuant to that delegation of “deeming” authority that the FDA decided to subject certain ENDS products—specifically, those that meet the FD&C Act definition of a “tobacco product”—to tobacco regulation under the FD&C Act. 81 FR 28973, 28982 (2016). The FDA's broad discretion under the FD&C Act encompasses the ability to define the scope of ENDS products that the FDA considers amenable to regulation, subject to the FD&C Act's parameters. For example, FDA-regulated tobacco products (including ENDS products) must be either made or derived from tobacco and intended for human consumption, or else a part, component, or accessory of such a product. 21 U.S.C. 321(rr)(1), 387a(c)(1). Pursuant to its discretion, the FDA decided to regulate “components or parts” of ENDS products but not “accessories.”
The context here is different, because the statute itself explicitly defines the scope of nonmailable ENDS in a manner that departs from the FD&C Act and FDA definitions. Specifically, the POSECCA makes nonmailable “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device.” The POSECCA refers to “nicotine” without distinguishing on the basis of origin (tobacco or otherwise). Furthermore, the POSECCA definition of ENDS sweeps beyond nicotine to include, as standalone triggers, “flavor[ ] or any other substance.” Clearly, Congress could have phrased the POSECCA to tie to or mirror the FD&C Act terminology, or it could have used other terminology that aligned with the scope of FDA regulation. Yet Congress did not do so; instead, it chose to specify a broader universe of nonmailable items than those that are subject to FDA regulation.
It is apparent that the POSECCA neither alters nor conflicts with the FD&C Act, and that it impinges in no way on the FDA's implementing regulations. Rather, the two laws apply concurrently, albeit with only a partial overlap in scope. This is nothing new. For example, the universe of products subject to FDA regulation as “tobacco products” is itself broader than the scope of “tobacco products” subject to Treasury Department regulation under IRC chapter 52, which expressly does not include ENDS products. See 26 U.S.C. 5702. Among other laws, manufacturers of combustible cigarettes must contend with IRC chapter 52 and FDA tobacco regulation as well as the PACT Act; manufacturers of ENDS
It also bears mention that certain commenters mischaracterized the FDA's policy on ENDS liquids, suggesting that the FDA has deemed only liquid nicotine and nicotine-containing liquid to fall within its regulatory purview. This is not necessarily true. Rather, the FDA observed that non-nicotine-containing liquids may be FDA-regulated as components or parts of ENDS liquids, to the extent that they are “intended or reasonably expected to be used with or for the human consumption of a tobacco product and do not meet the definition of accessory.” 81 FR at 29041. It therefore may be that the POSECCA's coverage of ENDS products that deliver “flavor[ ] or any other substance” beyond nicotine, as well as non-tobacco-derived nicotine, represents less of a step beyond FDA regulation than these commenters asserted.
As for “accessories” of ENDS products, it is true that the FDA's “deeming” rule exempted them from regulation under the FD&C Act. Yet Congress chose to render them nonmailable under the POSECCA. We note that the POSECCA does not define “accessories,” and so Congress has not spoken to whether the term should be interpreted in a manner consistent with the scope of items that the FDA has defined as outside of its regulatory framework. As discussed in section III.D, the POSECCA definition resides in a statute administered by ATF, and so the Postal Service will look to ATF for interpretive guidance about the scope of “accessories” for PACT Act purposes.
Numerous pro-ENDS commenters urged that the POSECCA be construed, or the Postal Service's implementing regulations be written, to exempt ENDS items consisting of, containing, or used with marijuana and marijuana- or hemp-derived products. Many of these commenters asserted that rendering such items nonmailable would conflict with State and local laws decriminalizing or legalizing cannabis for medical or recreational purposes. Some claimed that the inclusion of such products would conflict with provisions in recent appropriations Acts (including that which includes the POSECCA) that bar the Department of Justice from using appropriated funds to prevent certain States and Territories “from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
As discussed further in section III.D.1.i, notwithstanding Congress's use of “nicotine” in the term “electronic nicotine delivery systems,” the plain language of the POSECCA definition makes clear that nonmailable ENDS products include those containing or used with not only nicotine, but also “flavor[ ] or any other substance.” It goes without saying that marijuana, hemp, and their derivatives are substances. Hence, to the extent that they may be delivered to an inhaling user through an aerosolized solution, they and the related delivery systems, parts, components, liquids, and accessories clearly fall within the POSECCA's scope.
That said, THC is generally nonmailable for reasons independent of the POSECCA and the PACT Act. THC-containing substances remain generally prohibited under the CSA, regardless of whether they are intended for purportedly medical or recreational purposes or whether the shipper or recipient resides in a State or locality that has decriminalized either or both such uses. 21 U.S.C. 812(c)(17), 843(b); Publication 52 section 453. Devices, parts, components, and accessories used with such substances can qualify as drug paraphernalia, which is likewise nonmailable. 21 U.S.C. 863; Publication 52 part 453. The only exceptions to this mailing ban are for hemp and hemp derivatives that contain no more than 0.3 percent THC by dry weight. See Publication 52 section 453.37.
Thus, ENDS products containing or used with THC (
For clarity, even if a shipper could avail itself of a PACT Act exemption with respect to ENDS products generally, the shipper is still prohibited from mailing ENDS products that contain THC (other than hemp derivatives with no more than 0.3 percent THC by dry weight). Nor does the lack of civil or criminal sanction under State or local law entitle any person to ship THC through the Federal postal network or absolve them of penalties under Federal law, so long as the Federal CSA remains applicable.
Conversely, THC-containing substances that are excluded from the CSA—that is, hemp and hemp derivatives with no more than 0.3 percent THC by dry weight—are not subject to CSA-based mailability restrictions, and items used with such substances (and not with controlled substances) may fall outside the definition of drug paraphernalia. Publication 52 section 453.37. As such, those substances continue to be mailable generally, to the extent that they are not incorporated into an ENDS product or function as a component of one. To the extent that they do comprise or relate to an ENDS product, however, then that product is now nonmailable under the PACT Act and POSECCA, except pursuant to a PACT Act exception.
The POSECCA and the Agriculture Improvement Act overlap, but they do not conflict. The Agriculture Improvement Act merely excludes certain products from the CSA. It does not affirmatively declare hemp and hemp derivatives to be mailable in any and all circumstances, superseding all other relevant laws (such as the POSECCA). For its part, the POSECCA restricts the mailability of only certain hemp-based and related products; hemp-based non-ENDS products are unaffected, as are ENDS products falling within one of the PACT Act's exceptions. That Congress has rendered some subset of a class of goods to be nonmailable while leaving the remainder mailable is not some sort of legal conflict, but, rather, how mailability regulation typically works.
Certain ENDS industry commenters argued that the PACT Act should not apply to non-nicotine-related ENDS
Whatever their merit, these comments are misdirected. It is true that section 2 of the PACT Act amended the Jenkins Act to impose various registration, labeling, and tax-compliance requirements on remote sales of cigarettes and smokeless tobacco, and that the POSECCA's amendment of the “cigarette” definition now subjects ENDS products to those requirements. See generally 15 U.S.C. 375
Finally, a Federal agency partner inquired whether the final rule would include an analysis pursuant to the Regulatory Flexibility Act (RFA). The Postal Service is generally exempt from Federal statutes that govern administrative matters. 39 U.S.C. 410(a); see
Even if the RFA did apply, however, the substance of this final rule would address all of the elements of a regulatory flexibility analysis. Sections I-II state the need for and objectives of the final rule: Namely, fulfillment of a specific statutory directive. See 5 U.S.C. 604(a)(1). This section III states the significant issues raised by public comments, the Postal Service's assessment of those issues, and any changes to the proposed rule made as a result of the comments. See
The POSECCA defines ENDS products in relation to their delivery of “nicotine, flavor, or any other substance.” 15 U.S.C. 375(7)(A). Through use of this list and the disjunctive “or,” this language is clear on its face: Covered ENDS products may be used to deliver nicotine,
Before addressing comments on non-nicotine substances, it must be emphasized that ATF is charged with administering the statute in which the relevant definitions reside. While the Postal Service consulted with ATF in developing the discussion that follows, questions of whether a particular product falls within these definitions therefore should be directed to ATF.
Two ENDS industry commenters presented multiple legal arguments for an alternative construction. First, they invoked the canon of statutory construction known as ejusdem generis, which “instructs that, where general words follow specific words in an enumeration describing a statute's legal subject, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Norman & Shambie Singer, 2A Sutherland Statutes & Statutory Construction section 47:17 (7th ed. 2020). One of the commenters argued that, applied here, “any other substance” must be interpreted as “any other substance that mimics nicotine or flavor.” The other argued that “any other substance” should be “limited to substances related to nicotine and flavor, such as liquid nicotine and liquid nicotine combined with colorings, flavorings, or other ingredients,” and posited that Congress may have intended this to encompass non-nicotine liquids used with e-cigarettes but not with other ENDS devices.
This argument is unpersuasive. “Nicotine” and “flavor” do not admit of any common characteristic, such as might define a class of substances beyond nicotine and flavor. See
Moreover, the ejusdem generis canon readily gives way “when the whole context dictates a different conclusion.”
As in
The statute here is clear on its face: “any other substance” means “any other substance,” limited not by some dubiously inferred principle but explicitly by the surrounding text, which confines the scope to substances delivered from an electronic device to an inhaling user via an aerosolized solution. Given that the enumerated list already includes one non-nicotine substance (“flavor,” as an alternative to nicotine), it cannot be said that other non-nicotine substances are “as dissimilar [from the enumerated items] as documents and fish.” See
Finally, the second commenter's alternative hypothesis that Congress may have intended “any other substance” to encompass non-nicotine and non-flavor substances, but only in connection with e-cigarette devices, finds no support in the statute. The phrase “delivers nicotine, flavor, or any other substance” appears in the definition's opening paragraph, which establishes the qualifying parameters for all covered ENDS products, without differentiation as to any particular species of ENDS device. 15 U.S.C. 375(7)(A). The next paragraph offers an illustrative list of various devices that are included within the definition, such as an e-cigarette, e-hookah, e-cigar, or vape pen.
One ENDS industry commenter attempted to enlist a second canon of construction: Noscitur a sociis, whereby “doubtful words in an ambiguous statute [are] given more precise content by the neighboring words with which [they are] associated.” Singer & Singer, 2A Sutherland Statutes section 47:16. The commenter proposed that “any other substance” be construed in light of the list of included devices in 15 U.S.C. 375(7)(B), which, the commenter claimed, “can only be used with nicotine-based products.” The commenter further asserted that a nicotine-focused construction would be consistent with the FDA and CDC's construction of the term “ENDS.”
This argument, too, founders for multiple reasons. First, the canon overlaps heavily with ejusdem generis and “does not apply absent ambiguity, or to thwart legislative intent, or to make general words meaningless.”
Even if there were reason to resort to noscitur a sociis here, it would not produce the limiting construction proposed by the commenter. Several, and possibly even all, of the statutorily enumerated terms (not to mention parts, components, and accessories) are used to refer to devices marketed for use with cannabis, for example, without concomitant reference to nicotine.
Finally, as explained in section III.C.1, the FDA operates under statutory authority that explicitly requires a nexus to tobacco. The POSECCA does not; instead, it refers to “any other substance” in the alternative to “nicotine” and “flavor.” As such, the scope of ENDS products made nonmailable by the POSECCA is self-evidently and materially broader than the scope of ENDS products regulated as “tobacco products” by the FDA.
Some ENDS industry commenters purported that certain floor statements by the POSECCA's sponsors evince an exclusive focus on nicotine-containing or -delivering ENDS products. From these supposed floor statements, the commenters concluded that non-nicotine-related ENDS products are beyond the scope of what Congress intended.
Legislative history ordinarily is useful only for resolving ambiguity in a statute, not for superseding or ambiguating already-plain statutory text. See Singer & Singer, 2A Sutherland Statutes & Statutory Construction section 48:1. Here, the statutory text is clear in its coverage of ENDS used with “nicotine, flavor, or any other substance [
Moreover, the commenters are incorrect: The legislative history of the POSECCA actually attests to concerns about non-nicotine-related and nicotine-related ENDS products alike. Bill sponsors frequently decried an epidemic of youth vaping without specifying the chemical composition of the vapors thus inhaled. One Senate sponsor spoke of teens “regularly vaping both nicotine and THC products” and singled out “closed systems that deliver only nicotine” as but one subset of a larger universe of devices, all of which his sponsored bill impliedly targeted. 165 Cong. Rec. S6,898 (daily ed. Dec. 9, 2019) (statement of Senator Cornyn).
Most tellingly, perhaps, the POSECCA was introduced in the 116th Congress during a widely reported health crisis related to vaping practices, which led to at least 68 deaths and 2,807 hospitalizations across the country from lung damage related to ENDS use. Hassan Z. Sheikh, Regulation of Electronic Nicotine Delivery Systems (ENDS): Background and Select Policy Issues in the 117th Congress 9 (Cong. Research Serv. Sept. 30, 2021). As discussed in section III.B, the House committee report on the POSECCA expressly adverted to this crisis as a motivating factor, as did floor statements regarding the POSECCA. See H. Rept. 116-260 at 3; 166 Cong. Rec. S7,028 (daily ed., Nov. 17, 2020) (statement of Senator Cornyn); 166 Cong. Rec. S4,174 (daily ed., July 2, 2020) (statement of Senator Feinstein); 165 Cong. Rec. H8,491 (daily ed., Dec. 9, 2019) (statement of Representative Mucarsel-Powell); 165 Cong. Rec. S6,586 (daily ed., Nov. 14, 2019) (statement of Senator Cornyn); 165 Cong. Rec. S5,431 (daily ed., Sept. 11, 2019) (statement of Senator Durbin). The CDC ultimately determined—several months prior to Congress's passage of the POSECCA, and some of the relevant floor statements—that this crisis was related to a chemical found in non-nicotine-related (specifically, THC-related) ENDS products. CDC, Outbreak of Lung Injury Associated with the Use of E-Cigarette, or Vaping, Products,
It is evident, then, that, while youth nicotine consumption was a prominent concern animating this bill, it by no means constituted the sole motivating concern. The framers' expressed concerns about the dangers of both nicotine-related and non-nicotine-related ENDS use underscore the plain import of the POSECCA's inclusion of all such ENDS products.
Some ENDS industry commenters urged the Postal Service to exclude personal vaporizers intended for use with waxes or dry herbs, as such substances do not take the form of an “aerosolized solution.” However, one public-health-oriented commenter recommended including solid substances and devices that aerosolize them, noting that, according to at least one definition, “solution” includes solid as well as liquid mixtures.
Once again, ATF is charged with administering the statute in which the relevant definitions reside. Questions of whether a particular product falls within these definitions therefore should be directed to ATF.
As a further initial matter, we note that many such products are already nonmailable regardless of the POSECCA. To the extent that personal vaporizers are intended for use with waxes or dry herbs containing THC (other than the limited class of hemp and hemp-based products under Publication 52 section 453.37), those substances are controlled substances and the vaporizers are drug paraphernalia under the CSA. Indeed, online marketing, reviews, and blog posts frequently tout the suitability of such products for use with controlled substances. See Publication 52 section 453.131 (listing such circumstances as
The Postal Service recognizes that some personal vaporizers may also be used as aromatherapy devices with herbs that do not contain controlled substances (
Such devices appear to fall outside of the POSECCA definition of a generally nonmailable ENDS product (and also would not be nonmailable as drug paraphernalia). As discussed in the preceding section, the POSECCA defines ENDS by reference to “an aerosolized solution” containing “nicotine, flavor, or any other substance.” Regardless of the constituent substance or substances, they must form part of a “solution.” A solution is a mixture of chemical substances that is both homogenous (
Raw or minimally processed organic matter, such as aromatic herb leaves, does not qualify as a “solution.” As such, if a device heats such matter to produce vapors for the user to inhale, that device does not operate “through an aerosolized solution” and thus falls outside the scope of the POSECCA definition. By the same token, its parts, components, and accessories (as well as the herbal matter used in the device) likewise fall outside of the POSECCA's scope.
It is emphasized that this analysis covers only devices used
One public-health-oriented commenter and two Federal agency partners inquired whether so-called “heat-not-burn cigarettes” are nonmailable under the PACT Act, either as ENDS products or as other forms of “cigarettes.”
Once again, ATF is charged with administering the statutes in which the relevant definitions reside. Questions of whether a particular product falls within these definitions therefore should be directed to ATF.
To the extent that “heat-not-burn cigarette” refers to a product that functions by heating tobacco leaf matter just shy of the point of combustion, such products vaporize a solid mass of processed tobacco leaf, not an aerosolized solution. As discussed in the preceding section, it seems likely that such products fall outside the POSECCA's definition of ENDS products.
Nevertheless, many, and perhaps all, such products contain or comprise a roll of tobacco wrapped in paper or another substance not containing tobacco. As such, these products may already be nonmailable under the preexisting definition of “cigarette” used for PACT Act purposes. 18 U.S.C. 2341(1)(A), referenced in 15 U.S.C. 375(2)(A)(i), referenced in 18 U.S.C. 1716E(a)(1). Such products may also be nonmailable as “smokeless tobacco,” insofar as they contain tobacco and are intended to be consumed without being combusted. 15 U.S.C. 375(13). Parties interested in a definitive opinion are advised to contact ATF, as instructed in the new rules.
One ENDS industry commenter expressed concern that the POSECCA definition of ENDS would prove so expansive as to encompass air fresheners, essential oil misters, portable aromatherapy diffusers, electric incense burners, household humidifiers, and other products that aerosolize matter for release into ambient air, rather than for direct inhalation. The commenter proposed that the Postal Service preclude this purportedly untoward construction by appending, to the statutory definition of ENDS (“any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device”) an implied limitation: “into the lungs.”
We note again that ATF, not the Postal Service, is charged with administering the definitional statute. Nevertheless, we note that the commenter's concern may be misplaced. The POSECCA definition restricts the scope of covered ENDS products based on delivery of a substance “to the user inhaling
One ENDS manufacturer, two public-health-oriented commenters, and a Federal agency partner asked the Postal Service to clarify that ENDS products include those containing or used with all forms of nicotine, whether natural or synthetic in origin.
The POSECCA defines ENDS products by reference to the delivery of “nicotine,” among other things. There is no statutory basis to read this term as referring only to natural-origin nicotine, as opposed to synthetic nicotine. As discussed in section III.C.1, this scope of regulation is different from that under the FD&C Act, for which purposes the FDA regulates nicotine-related ENDS products to the extent that the nicotine is made or derived from tobacco. Beyond this observation about the POSECCA's plain language, interested
In addition to fully assembled vaping devices, the POSECCA includes in its definition of ENDS “any component, liquid, part, or accessory of [an ENDS], without regard to whether the component, liquid, part, or accessory is sold separately from the device.” 15 U.S.C. 375(7)(B)(vii). Some pro-ENDS commenters found this definition to create a line-drawing conundrum, noting that certain materials used in ENDS devices and liquids are used in a wide array of non-ENDS consumer products. A partner agency also suggested that the terms could be interpreted in a manner similar to the definitions of “accessory” and “component or part” for purposes of the FDA's regulation of certain ENDS products. See 21 CFR 1100.3.
The Postal Service recognizes the point and notes that it resonates with other contexts in which parts, components, or accessories of a given type of item may be regulated.
Here, too, interpretative questions about whether the POSECCA definition codified in the Jenkins Act applies to specific precursor parts, components, or accessories should be directed to ATF.
The POSECCA excludes from the definition of ENDS products any such products that are approved by the FDA for sale as a tobacco cessation product or for any therapeutic purpose, and that are marketed and sold solely for such purposes. 15 U.S.C. 375(7)(C).
Multiple public-health-oriented commenters and law students recommended that the Postal Service disallow the exclusion at this juncture, or at least establish a presumption that mailed ENDS products are not covered by the exclusion. These commenters pointed out that no such products have been approved by the FDA. Hence, given the prevalence of non-validated tobacco-cessation and other health claims by the industry in association with ENDS products, allowing mailers to purport to use the exclusion would arguably invite deceptive practices and complicate enforcement.
Two public-health-oriented commenters and one law student went farther and offered specific proposals for how the Postal Service could administer the exclusion if and when the FDA issues a pertinent approval. As envisioned by one public-health-oriented commenter, the FDA would formally inform the Postal Service of its approval, whereupon the Postal Service would collaborate with the FDA and manufacturers to establish a list of eligible shippers (
One ENDS industry commenter opined that the exclusion pertains to drug protocols and would paradoxically exclude the ENDS industry. The commenter went on to quote from a court opinion to the effect that the FDA is authorized to regulate “customarily marketed tobacco products—including e-cigarettes—under the Tobacco Control Act” and “therapeutically marketed tobacco products under the [FD&C Act's] drug/device provisions.”
A manufacturer of herbal vaporizers proposed that mailers be allowed to self-certify the eligibility of a product for the exclusion via distinctive labeling on the package, backed by recordkeeping requirements similar to those for hemp-based cannabidiol (“CBD”) products. See Publication 52 section 453.37.b. The commenter considered the analogy to be apt because of the difficulty in distinguishing CBD products that do and do not qualify for the CSA exception, similar to the likely difficulty in distinguishing ENDS products that do and do not qualify for the POSECCA exclusion. The commenter opined that this approach would provide a credible means of verifying eligibility, while minimizing burdens on the Postal Service's operational and enforcement personnel.
Finally, a large number of individual ENDS consumers commented about the perceived tobacco-cessation benefits of ENDS products, both in their own experience and in relation to U.K. studies and purported official European health recommendations.
The first set of commenters is correct: The FDA has not approved any ENDS product for smoking-cessation or other therapeutic use.
While the distinction between excluded and nonmailable ENDS products may be difficult to get right in practice, it is essential to get it right, given the PACT Act's directive that the Postal Service not “accept for delivery or transmit through the mails” any package as to which “reasonable cause” exists to believe that it contains nonmailable ENDS products. See 18 U.S.C. 1716E(a)(1). Whatever merit the ideas raised by commenters on this topic may have, the Postal Service finds it inadvisable to attempt (in consultation with ATF) to set forth appropriate standards in the abstract. Rather, if and when any product is approved by the FDA, concrete circumstances will guide the development of a practical approach.
Therefore, the final rule contains language clarifying that the exclusion does not apply at this time, but inviting
The FDA likewise has not approved any ENDS product for therapeutic delivery of any non-nicotine substance, including, in particular, CBD or other substances derived from marijuana.
The concern that the statutory exclusion pertaining to FDA drug or device protocols would paradoxically exclude the ENDS industry appears to be off-base. The very court opinion quoted by the commenter notes that the FDA's regulatory authority extends to “therapeutically marketed tobacco products under the [FD&C Act's] drug/device provisions.”
Finally, a Federal agency partner suggested that the Postal Service clarify the scope of “other therapeutic purposes,” perhaps in line with the
One public-health-oriented commenter proposed that the Postal Service clarify that, while the PACT Act's exception for intrastate shipments within Alaska and Hawaii may apply to ENDS products, it does not apply to interstate ENDS shipments into or out of either state.
The Postal Service does not believe that such clarification is necessary. The PACT Act is already abundantly clear that the exception applies only to “mailings
The Business/Regulatory Purposes exception was a major area of commenter discussion, and so it is discussed extensively here. In short, the exception permits shipments between legally operating businesses in certain industry sectors and between such businesses and Federal or State government agencies, subject to multiple conditions. 18 U.S.C. 1716E(b)(3)(A). Those conditions include Postal Service verification of the sender and recipient's respective eligibility, as well as the recipient's age and employee status; restriction of available products to those that allow tracking and confirmation of delivery; capture and retention of package-specific identifying information by the Postal Service; and certain package markings.
In implementing these requirements, the Postal Service adopted a process whereby potential senders must first submit an advance application to the Postal Service's Pricing and Classification Service Center (PCSC) for an eligibility verification as to the applicant and any anticipated recipients of that applicant's shipments. Publication 52 section 472.221. Upon a PCSC determination of eligibility, the authorized sender must show the resulting authorization letter when tendering any covered mailing via a face-to-face transaction with a Postal Service employee at an approved acceptance location.
In the notice of proposed rulemaking, the Postal Service proposed a simple amendment to the terminology used in the Business/Regulatory Exception rules, such that the same rules would automatically apply to ENDS products as to other PACT Act-covered products. 86 FR at 10220.
As an initial matter, a few comments dealt with existential aspects of the exception. Two ENDS industry commenters sought confirmation that the exception would extend to ENDS products, in order to sustain industry supply chains, regulatory activities, and the channeling of ENDS to retail outlets subject to State and local law (in lieu of direct-to-consumer shipments). Conversely, one law student urged the abolition of the exception for ENDS
As discussed in section III.A.2, the Business/Regulatory Purposes exception is established by statute, and the Postal Service lacks the delegated authority to modify or restrict the exception's applicability on policy grounds. Unlike the Consumer Testing and Public Health exceptions discussed in section III.I, nothing in the statutory language concerning the Business/Regulatory Purposes exception indicates Congressional intent to exclude ENDS products from the exception, and there is no other basis to find such products to be incompatible with the exception's terms. As such, the exception is available in connection with ENDS products as a legal matter, regardless of whatever policy arguments might militate for or against it.
Another pro-ENDS commenter feared that the conditions for the exception could be expanded into termination of the exception altogether. This comment appears to misconstrue the exception as a freestanding entitlement, upon which the Postal Service somehow discretionarily grafted conditions as a means to subvert the intended scope of the exception. In fact, however, Congress itself specified the criteria as conditions precedent that must be met in order to qualify for the limited exception: The conditions are therefore integral to the statutory framework for the exception. The longstanding conditions in Publication 52 merely bear out that framework, either by literally transmuting the statutory requirements or by means designed to fulfill those requirements. The regulatory framework has applied to cigarettes and smokeless tobacco since 2010. The POSECCA charges the Postal Service with clarifying the applicability of the limited exception, with its eligibility conditions, to ENDS products, and the final rules here do that.
One public-health-oriented commenter viewed the Business/Regulatory Purposes exception as being cabined by 18 U.S.C. 1716, such that 18 U.S.C. 1716(a) and (e) would preclude use of the Business/Regulatory Purposes exception as a “bulk distribution method” for manufacturers and wholesalers to transport ENDS products to retailers. It is true that eligibility to use the Business/Regulatory Purposes exception to the PACT Act does not excuse a mailer from compliance with other applicable mailability statutes, including 18 U.S.C. 1716. But the Postal Service cannot join the commenter's sweeping conclusion that all “bulk distribution” shipments of ENDS products that could be sent under the Business/Regulatory Purposes exception would necessarily be prohibited or restricted under 18 U.S.C. 1716. Many ENDS products do not qualify as injurious articles subject to 18 U.S.C. 1716, and as discussed in section III.A.2, Postal Service regulations permit many hazardous materials to be mailed pursuant to specified precautions. The precautions in existing regulations have historically been deemed sufficient to fulfill 18 U.S.C. 1716 for otherwise mailable shipments of ENDS products; it has never been the case that otherwise mailable ENDS products were deemed so extraordinarily dangerous as to warrant outright prohibition in the face of lesser applicable hazardous-materials safeguards. While the scope of generally mailable ENDS products will now be limited by the PACT Act's exceptions, the Postal Service perceives no rational basis to upset the highly reticulated harm-based framework for hazardous-materials regulation.
In the course of its 18 U.S.C. 1716 argument, the same commenter raised policy concerns about use of the Business/Regulatory Purposes exception to evade state and local taxes. But 18 U.S.C. 1716 has nothing to do with tax collection or evasion. Nor has Congress specifically conditioned eligibility for the Business/Regulatory Purposes exception on any particular standard of tax compliance, as it expressly did for the Consumer Testing exception. 18 U.S.C. 1716E(b)(5)(A)(iv), (b)(5)(C)(ii)(III) (Consumer Testing exception). Of course, noncompliance with applicable tax laws may subject a business to penalties under other Federal, State, local, or Tribal laws. It may also affect the business's ability to obtain relevant licenses or permits, which is a prerequisite for eligibility to use the Business/Regulatory Purposes exception.
Finally, a Federal agency partner sought clarification of whether the Business/Regulatory Purposes exception encompasses shipments from businesses to Federal regulatory agencies and vice versa for enforcement or investigational purposes. The PACT Act permits use of the exception “for regulatory purposes
The Business/Regulatory Purposes exception permits shipments of PACT Act-covered products between “legally operating businesses that have all applicable State and Federal Government licenses or permits and are engaged in tobacco product manufacturing, distribution, wholesale, export, import, testing, investigation, or research” and between such businesses and Federal or State government agencies. 18 U.S.C. 1716E(b)(3)(A)(i)-(ii).
A number of ENDS industry commenters opined that “businesses . . . engaged in . . . distribution” should be understood to include retailers, common carriers, and contract delivery services. This interpretation accords with the Postal Service's longstanding practice in applying the statutory term, as well as with dictionary and related statutory definitions. See,
An ENDS industry association proposed to clarify that “testing, investigation, or research” includes contracted research organizations and laboratories. It seems self-evident that such entities would be covered, to the extent that they are “engaged in . . . testing, investigation, or research” as to PACT Act-covered products; the statute provides no basis for distinction according to such entities' contractual relationships. Here, too, the Postal Service regards the statutory language as sufficiently clear in encompassing the relevant entities, without further elaboration. While the statute does not appear to preclude eligibility for such parties generally, verification of any particular research organization or laboratory's eligibility will involve a case-specific determination based on the documentation submitted with the relevant application.
The same ENDS industry association asked that marketing firms be treated as eligible. The PACT Act does not appear to permit such treatment. None of the categories of business activity enumerated in the statute encompasses marketing or related activities, such as advertising or promotion. Nor does the statute extend eligibility to agents of enumerated businesses, in contrast to the Consumer Testing exception. Cf. 18 U.S.C. 1716E(b)(5)(A). As an exception to a general policy of nonmailability, the Business/Regulatory Purposes exception merits narrow construction. See,
An ENDS manufacturer asserted that licensed independent mystery-shopper contractors should count as entities “engaged in . . . testing, investigation, or research.” To the extent that such a contractor is a business entity, then it could potentially come within the scope of the exception, depending on the Postal Service's assessment of the documentation submitted with the relevant application. To the extent that the contractor is an individual tester, however, then it would appear to fall outside of the scope of the exception, which is restricted to “legally operating businesses that have all applicable State and Federal Government licenses or permits.” Rather, shipments from businesses to individual testers would appear to be akin to the shipments governed by the Consumer Testing and Public Health exceptions, which Congress narrowly circumscribed and, as discussed in section III.I, did not make available for ENDS products in any event. To the extent that individual testers may wish to send ENDS products to a manufacturer, testing firm, or other entity, these shipments would fall within the scope of the Certain Individuals exception, subject to the relevant criteria and limitations.
The same manufacturer inquired whether “between legally operating businesses” would be construed to include shipments between two offices of the same eligible firm, in addition to shipments between separate firms. The Postal Service agrees that this construction makes sense, provided that all relevant intra-firm sender and recipient addresses are listed in the firm's application and approved by the Postal Service. Indeed, it is difficult to conceive of why Congress would permit shipments between duly authorized facilities of separate firms, while prohibiting them between identical facilities that happen to be within the same corporate structure. This understanding accords with the Postal Service's historical practice in administering the exception prior to the POSECCA.
Certain pro-ENDS commenters suggested that the Business/Regulatory Purposes exception could be used to facilitate the return of ENDS products from consumers to businesses. The PACT Act does not permit this use of the Business/Regulatory Purposes exception. Eligibility for the Business/Regulatory Purposes exception is restricted to shipments between eligible businesses or between such businesses and Federal or State government agencies. By contrast, 18 U.S.C. 1716E(b)(3) does not contain any indication of legislative intent to encompass shipments either to or from individual consumers. That said, business-to-business product returns and recycling- or reuse-related shipments may be permissible between eligible and approved businesses, and consumer-to-business shipments for such purposes may be permissible under the Certain Individuals exception, as discussed in section III.H.
State and local attorneys general opined that a business's status as “legally operating” implies compliance with all pertinent laws, and that a business does not qualify as “legally operating” for purposes of the Business/Regulatory Purposes exception if it markets products that are counterfeit, that are not the subject of a timely premarket application to the FDA, or that are otherwise inconsistent with applicable law. The Postal Service agrees that all mailers must comply with all applicable laws with respect to products that they mail, and that a pattern of violations may rise to a level where a business may no longer be considered “legally operating.” It seems equally apparent, however, that a business may violate a law with respect to certain of its products while operating legally in other respects. Therefore, the Postal Service regards the question of whether and when violations suffice to render a business no longer “legally operating” to be a case-specific one, dependent on the totality of relevant facts and circumstances in a particular situation. The Postal Service encourages its Federal, State, local, and Tribal governmental partners, as well as any other party, to bring to the attention of the Postal Inspection Service any indication that an ENDS-industry business mailer may have committed material legal violations such that it may no longer be considered “legally operating.”
The same commenters proposed that the Business/Regulatory Purposes exception be restricted to recipients using their physical address as the delivery address and that recipients using a different delivery address (such as a Post Office Box or private rental mailbox) be barred from eligibility. The Postal Service declines to adopt this recommendation. Such a restriction is not among the statutory eligibility criteria. Even if the Postal Service had the policy discretion to adopt such a categorical restriction, the basis for such a potentially overbroad rule is unclear. The Postal Service notes that Post Office Boxes and private rental mailboxes are used by a variety of business and governmental actors for a variety of reasons.
Two Federal agency partners inquired whether the Business/Regulatory Purposes exception, or some other exception, would accommodate shipments from one governmental actor to another, such as between a governmental field agent and an agency laboratory or between two separate agencies. Congress has made the Business/Regulatory Purposes exception available only for shipments (1) from one covered business to another and (2) from such a business and governmental actor or vice versa, 18 U.S.C. 1716E(b)(3)(A)(i)-(ii), but
The PACT Act charges the Postal Service with verifying that any person submitting an otherwise nonmailable tobacco product into the mails, and any person receiving such a product through the mails, as authorized under the Business/Regulatory Purposes exception, is a business or government agency within the scope of the exception. 18 U.S.C. 1716E(b)(3)(B)(ii)(I)-(II); see also
In general, pro-ENDS commenters expressed concern that the centralized authorization process set forth in Publication 52 section 472.221, in combination with the fact that the POSECCA's mailing prohibition would take effect immediately upon adoption of the final rule, would have an unduly disruptive effect on the ENDS industry, at least to the extent that supply-chain-related and regulatory mailing activity might ultimately be deemed permissible under the Business/Regulatory Purposes exception.
Some industry commenters recommended that the Postal Service develop a streamlined process involving an online application portal. The Postal Service agrees that this recommendation might well benefit applicants, as well as improve the effectiveness and efficiency of Postal Service review. Unfortunately, the Postal Service's existing information technology infrastructure does not allow for such a solution in the near term, and the need for prompt implementation precludes development and implementation of an online application portal prior to adoption of the final rule. The Postal Service will continue to explore the feasibility of digitizing the application process and may amend its rules appropriately at a later time.
Particularly given the lack of a digital-based application process, at least one industry commenter expressed concern that the Postal Service may not be prepared for a potential flood of applications, and two others asked the Postal Service to ensure adequate staffing to process applications. The Postal Service recognizes that the ENDS industry is less consolidated, more complex, and more reliant on the mail than the industries previously subject to the PACT Act. As such, the Postal Service shares the commenter's anticipation of a large number of applications that far exceeds the historical rate of such applications and involves numbers of parties and products far greater than past applications. See 86 FR at 20288. The Postal Service is therefore undertaking multiple steps in an effort to improve the efficiency of the application review process and to mitigate the likely increase in processing times:
• The Postal Service provided advance guidance to ENDS industry actors about application documentation that they could compile while awaiting the final rule, in the interest of filing an application as soon as possible following the final rule and minimizing the chances of delayed processing due to insufficient supporting documentation.
• The Postal Service also provided advance guidance about other mailability restrictions that might apply to ENDS products, so that potential applicants may preemptively consider whether their products would be nonmailable in any case and, in appropriate cases, narrow the scope of their Business/Regulatory Purposes applications accordingly or forgo applying altogether. See
• For at least a temporary period, the Postal Service is assigning additional analyst resources to assist the PCSC with reviewing Business/Regulatory Purposes exception applications. This internal workload-management change does not affect any aspect of the rules themselves and therefore is not reflected in the text of the final rule.
Despite these measures, it must be recognized that the Postal Service has limited financial and other resources with which to fulfill its universal service mission and fulfill myriad other statutory obligations,
A number of pro-ENDS commenters expressed concern that an immediate effective date, coupled with a time-consuming application process for the Business/Regulatory Purposes exception, would disrupt the very industry supply chains and regulatory activities that the exception is intended to safeguard. To avoid such anticipated harms, these commenters asked the Postal Service either to accept Business/Regulatory Purposes exception applications in advance of the final rule, or else to defer the mailing ban until applications can be approved. In the April 2021 Guidance, the Postal Service explained that it would not accept early applications, as it was yet undetermined to what extent the exceptions would be available for ENDS products at all and on what terms. 86 FR at 20288. It is tautological that the Postal Service cannot announce and give effect to an exception to a mailing ban before the ban takes effect; prior to the ban, mailability is the rule, not an exception. As for accepting and processing applications in advance of the final rule, the course of intra- and interagency deliberations over the final rule—particularly in light of the voluminous number and range of public comments—required an extraordinary amount of time to process, to the point where any early acceptance period would have been too short to provide the substantial buffer that commenters sought. Nor is the Postal Service at liberty to further defer the effective date simply for the sake of a small group of pro-ENDS commenters, for the reasons discussed in section III.A.3. As it was, the same complex deliberations required far more time to complete the final rule than Congress had allotted in the POSECCA, and the policy interests evident in the statutory text and legislative history—none of which include solicitude toward industry supply chains or regulatory activities—do not support additional, discretionary delay beyond what was necessary to complete the final rule.
Out of similar concerns over at least temporary disruption of industry supply chains, two ENDS industry commenters proposed that the Postal Service allow applicants to continue mailing ENDS products within the scope of the exception while awaiting approval of their application, subject to a sworn certification of eligibility, a bond or other security, or a provisional eligibility number provided by the Postal Service. The Postal Service declines to adopt this proposal as inconsistent with the aforementioned statutory requirements that the mailing ban take effect immediately and that the Postal Service verify the sender and recipient's eligibility prior to permitting any mailing under the Business/Regulatory Purposes exception.
Even if 18 U.S.C. 1716E(b)(3)(B)(ii)(I)-(II) were arguably ambiguous as to whether verification may happen after acceptance or even after delivery, the Postal Service considers the only reasonable interpretation to be that verification must occur prior to acceptance. Congress clearly expressed its intent that verification of the recipient occur prior to delivery: 18 U.S.C. 1716E(b)(3)(B)(ii)(VI) requires package markings apprising Postal Service personnel that a given mailing “may be delivered only to a permitted government agency or business.” Hence, “permitted” status must be ascertained as a condition precedent to delivery. Moreover, the exception is available “only” to eligible businesses and government agencies. 18 U.S.C. 1716E(b)(3)(A). The exception therefore may not be used to justify a mailing to or from an ineligible entity, regardless of whether the entity is the subject of a pending application. Because eligibility is not determined until it is determined, the presumption must necessarily be that a mailing is ineligible until demonstrated to be eligible, not the other way around. Moreover, the Postal Service is mindful that the Business/Regulatory Purposes exception is carved out from the general rule that ENDS products “shall not be deposited in or carried through the mails.”
The same commenters urged the Postal Service to streamline or eliminate the process for updates to approved applications, which, the commenters argued, should not require a further application and approval process. The requirements for approval of updated applications were set forth and explained in the Postal Service's 2010 final rule implementing the PACT Act. As the Postal Service explained then, the PACT Act charges the Postal Service with verifying the eligibility of senders and addressees pursuant to the Business/Regulatory Purposes exception, and so mailers must be responsible for maintaining the accuracy of all information in their applications and await verification of eligibility before any mailing may be treated as permissible under the exception. 76 FR at 29666.
Indeed, an update may be just as substantive as the original application (
Nothing about the statutory verification requirement has changed since 2010, and so there is no basis to rethink the need to verify updated applications. That said, as noted earlier, the Postal Service will undertake to explore possibilities for streamlining the application process, including updates to applications, through automation and digitization.
Some pro-ENDS commenters opined that the centralized application process imposes red tape that favors large industry actors and poses undue obstacles to smaller businesses. While
Two ENDS industry commenters suggested that the Postal Service provide a checklist for applicant documentation. Simultaneously to the final rule, the Postal Service is issuing a distinct version of its application form to account for ENDS products. The amended form will include detailed instructions and documentation requirements, as well as supporting worksheets.
Two ENDS industry commenters requested that the Postal Service confirm that it would process applications on a “first in, first out” (FIFO) basis, in the interest of equal treatment for all businesses. The PCSC generally uses a FIFO system for each stage of application processing, although the precise sequencing of application processing may be complicated somewhat by the expanded distribution of workload discussed earlier in this section.
State and local attorneys general proposed that the Postal Service share applications with State and local law enforcement officials to spread out the investigative workload. The Postal Service appreciates the suggestion and is willing to consider possibilities for enhancing application processing via intergovernmental and/or interagency information-sharing, subject to feasibility, appropriate protections for third-party information, and other pertinent conditions. The Postal Service regards such intergovernmental cooperation as part of what should be the normal administration of the PACT Act, see 18 U.S.C. 1716E(g), and looks forward to further dialogue with partners outside of the ambit of this rulemaking.
State and local attorneys general also proposed that the Postal Service use State and local governments' lists of licensees to verify eligibility. This suggestion is facially reasonable, but the Postal Service is unaware of any consolidated data source that would enable efficient and fair incorporation of such a resource into the application review process. Here, too, the Postal Service welcomes further dialogue with its intergovernmental partners about potential enhancements to PACT Act administration.
To support verification of eligibility as legally operating under 18 U.S.C. 1716E(b)(3)(A) and (b)(3)(B)(ii)(I), preexisting Publication 52 section 472.221.a required an applicant to submit information about its legal status, any applicable licenses, and authority under which it operates; information about the legal status, any applicable licenses, and operational authority for all entities to which the applicant's mailings under the exception would be addressed; and all locations where mail containing cigarettes and smokeless tobacco would be presented.
Some ENDS industry stakeholders expressed concern that the documentation requirements were geared exclusively toward tobacco licensing and would prejudice mailers of non-nicotine-related ENDS products. This concern is unfounded. Nothing in either 18 U.S.C. 1716E(b)(3)(A) or Publication 52 section 472.221.a is specific to tobacco or nicotine licensing. Instead, the statute conditions eligibility on the sender and recipient having “all
Insofar as the concern may pertain to a separate phrase in 18 U.S.C. 1716E(b)(3)(A)—“engaged in tobacco product manufacturing [or other specified types of business activity]”—it is evident that Congress used “tobacco product” in the PACT Act as a catch-all term encompassing all PACT Act-covered products, regardless of actual tobacco content. See 86 FR at 10219. To be sure, the phrase's import was clearer prior to POSECCA, when all PACT Act-covered products were derived from tobacco. But even after POSECCA's inclusion of non-tobacco-related ENDS products, see
In any event, the instance of “tobacco product” in 18 U.S.C. 1716E(b)(3)(A) cabins only the activity-based classes of entities eligible for the exception, and not the nature of the licenses or permits under which they may operate. Rather, licenses and permits go to whether the entity—whatever its market and field of activity—is legally operating.
Certain other ENDS industry commenters inquire about a situation where neither Federal nor State law imposes any particular license or permit requirements on the same of a given ENDS product. The commenters propose that an applicant be permitted to simply cite a State statute allowing general business operations. The Postal Service appreciates the novelty of the situation, which would not have arisen with respect to the comprehensively regulated products previously subject to the PACT Act. As noted earlier, the PACT Act requires verification of all applicable State and Federal Government licenses or permits. If there are no applicable licenses or permits upon which “legally operating” status as to the relevant business activity depends, then that is that. At the very least, however, it seems unlikely that any State's laws would permit an applicant business to operate without a general business license. To the extent that the applicant's relevant business activity is not subject to any other license or permit requirements, then the applicant should be prepared to attest to and document that circumstance, either affirmatively or in response to further PCSC inquiry. Particularly where no other documentation may exist, a government-issued certificate of good standing may be helpful, although not necessarily dispositive. Applicants are reminded that they bear the burden of proof in establishing eligibility to the satisfaction of the PCSC, and applications will likely be processed faster if applicants affirmatively provide robust information about their legal status up front.
It should be noted that the same verification requirements apply with respect to all senders and recipients under the exception, regardless of their status as business actors or government agencies. See 18 U.S.C. 1716E(b)(3)(A), (b)(3)(B)(ii)(I)-(II). At the same time, however, only businesses' eligibility is conditioned upon “legally operating” status as evidenced by licenses and permits, compare
One ENDS business asked about how the documentation requirements would apply to contract research organizations and trade shows. The same principles would apply as discussed earlier in this section: To the extent that lawful operation of a contract research organization or trade show relating to the relevant PACT Act-covered products requires Federal or State licensing or permitting, then copies of such documentation must be included with an application concerning such a party. Again, particularly where other license or permit documentation may not exist, a government-issued certificate of good standing may be helpful, albeit not necessarily dispositive.
It is emphasized that the Postal Service is required not merely to collect Federal and State licenses and permits, but also to verify more broadly that a business is “legally operating” and “engaged in” the relevant business activity. This may require the submission of documentation beyond merely licenses and permits. For example, a university performing research on behalf of ENDS industry participants may need to submit not only copies of relevant licenses and permits, but also grant or contract documentation indicating that the research is within the scope of a legally authorized undertaking.
State and local attorneys general proposed that the Postal Service require applicants to provide information about the products that they intend to ship under the Business/Regulatory Purposes exception. The product suggestion is well-taken, given the various other regulatory and mailability concerns apart from the PACT Act that may pertain to certain ENDS products. The new application form and worksheet incorporate requirements for applicants to provide brand names and descriptions of each product that they intend to ship, as well as additional supporting documentation regarding products that contain lithium batteries, nicotine, THC, or CBD and any other ENDS liquids or solutions.
State and local attorneys general also recommended that applicants be required to certify that they will ship only between authorized persons (
Several pro-ENDS commenters asked the Postal Service not to limit the use of the Business/Regulatory Purposes exception to shipments via Priority Mail Express with Hold for Pickup service, but rather to allow such shipments via Priority Mail as a more affordable alternative. This concern appears to refer to the PACT Act rules initially implemented in 2010, and not to the current rules. Although Priority Mail Express with Hold for Pickup service was the only combination of services available at the time of original PACT Act implementation in 2010 that could permit the Postal Service to fulfill the PACT Act's age-verification, identity-verification, and tracking requirements, see 75 FR at 29665-29666, the subsequent creation of Adult Signature service enabled the Postal Service to expand the range of available product combinations to Priority Mail Express or Priority Mail with Adult Signature service. See Adult Signature Services, 76 FR 30542 (2011); Publication 52 section 472.222.a. Hence, the Postal Service has long since offered Priority Mail-based options. In this rulemaking, no commenter expressed opposition to the continued availability of Priority Mail Express or Priority Mail with Adult Signature Service for shipments under the Business/Regulatory Purposes exception, and the Postal Service is aware of no reason to restrict such availability in the context of ENDS products.
Upon further consideration, however, it is apparent that Hold for Pickup is now an inferior alternative for fulfilling the PACT Act's verification requirements. Unlike Adult Signature service, Hold for Pickup does not inherently require age or identity verification; rather, personnel must be instructed and expected to identify when a particular Hold for Pickup item requires such verification, based on mailers' compliance with the marking requirement. Because Adult Signature service now provides a more effective means to ensure verification, the Postal Service is discontinuing the option of Priority Mail Express with Hold for Pickup service for mailings under the Business/Regulatory Purposes exception, as well as all other PACT Act exceptions.
The Postal Service's preexisting PACT Act regulations require Business/Regulatory Purposes shipments to be tendered via a face-to-face transaction with a Postal Service employee, other than through package pickup by a letter carrier. Publication 52 section 472.222.a. A number of ENDS industry commenters asked the Postal Service to reconsider what they characterized as a requirement to tender at a Post Office and to allow Pickup on Demand, package pickup, or business mail acceptance for excepted shipments. Some such commenters noted that the purported requirement is not grounded in the text of the PACT Act.
The commenters misperceive somewhat the import of the face-to-face transaction requirement. For customers using the Business/Regulatory Purposes exception, only Pickup on Demand and package pickup are precluded; nothing in Postal Service regulations prohibits tender at a business mail entry unit or at authorized acceptance locations at a Post Office other than the retail counter, so long as a Postal Service employee accepts the items via an in-person, face-to-face encounter. But see DMM section 503.8.1.3 (requiring tender at a retail counter for customers using Adult Signature service to mail under the Certain Individuals exception). To promote clarity, the final rule includes explicit mentions of retail and/or business mail acceptance locations. The Postal Service hopes that this clarification should help to dispel the commenters' fears of bottlenecks at retail counters.
That said, the Postal Service declines to reconsider the prohibition on Pickup on Demand and package pickup. The centralized application process is intended to streamline the extent of verification that would otherwise be required upon acceptance pursuant to 18 U.S.C. 1716E(b)(3)(B)(ii)(I)-(II), but it cannot supplant acceptance verification entirely. Something must be done to associate the PCSC's determination of eligibility with a given mailing: otherwise, the Postal Service personnel faced with an apparent mailing of a prohibited product have no way to determine its legitimacy, defeating the whole purpose of PCSC verification. For this reason, while a mailer need not submit the entire dossier of eligibility documentation with each mailing, the mailer must at least show a Postal Service employee the PCSC's determination of eligibility, so that the Postal Service can be assured that the package may lawfully be accepted.
Pickup on Demand and package pickup do not provide adequate assurance that the face-to-face interaction necessary to connect PCSC authorization with a given package will occur in all cases. Much of the customer convenience underlying Pickup on Demand and package pickup is in the fact that packages may be left passively for a carrier to pick up
In addition to ensuring that the addressee is eligible to receive shipments under the Business/Regulatory Purposes exception, the PACT Act requires the Postal Service to ensure (1) that delivery is made only to a verified employee of the addressee; (2) that the receiving employee be verified to be at least the minimum age for
Some ENDS industry commenters asked that delivery options be expanded from Priority Mail Express with Hold for Pickup service to allow carrier delivery. As discussed in section III.G.5, this request has long since been fulfilled. The Postal Service in 2011 expanded the range of available services to include Priority Mail Express or Priority Mail with Adult Signature service. Unlike Hold for Pickup, which requires a recipient to retrieve a package from a local Post Office, Adult Signature service can be fulfilled by a letter carrier. As such, the Postal Service's longstanding regulations already include carrier delivery options. As also noted in section III.G.5, however, the Postal Service has now determined to discontinue the availability of the Hold for Pickup option; this does not affect the availability of Adult Signature options that are compatible with carrier delivery.
One ENDS industry association recommended that the final rule expressly contemplate a signed letter from an employer as proof of employment. The Postal Service recognizes that the preexisting PACT Act regulations are not specific on this point, and that lay readers may benefit from additional clarity. Therefore, the final rule offers examples of acceptable employment documentation, including an employee identification badge or card, a recent letter on company or agency letterhead attesting to the recipient's employment, or any other documentation that the local postmaster deems to be of comparable reliability. In addition, where delivery is made to a business address, the carrier will be permitted to infer employment status from such factors as the recipient's uniform and presence at a reception desk or retail counter.
Finally, State and local attorneys general asked that the Postal Service bar delivery of shipments under the Business/Regulatory Purposes exception to Post Office Box or private mailbox addresses. The Postal Service declines to do so, for the reasons discussed in section III.G.2.
As extended to ENDS, this exception allows individual adults to mail a limited number of lightweight packages containing ENDS products for noncommercial purposes. 18 U.S.C. 1716E(b)(4)(A). Some pro-ENDS commenters requested clarification on whether the return of damaged ENDS products to the manufacturer is covered by this exception. By way of clarification, the statute requiring this exception expressly includes the return by an individual of damaged or unacceptable goods to the manufacturer.
For additional clarity, the final rule adds language making explicit the permissibility of returning damaged or unacceptable products under this exception. The new language also clarifies the application of the exception's noncommercial-purpose condition to returns of damaged or unacceptable products, in that a product return remains noncommercial so long as any value offered to the sender is limited to the consumer's original outlays for the returned product and the cost of its return. Any additional exchange of value would not merely restore the consumer to their status quo ante; it would be tantamount to a higher-priced sale and thus no longer a noncommercial transfer.
Noting the noncommercial-purpose requirement, some ENDS industry commenters sought clarification regarding whether used disposable ENDS products, which they claim have no commercial value and are similar to damaged products, would be included as “damaged or unacceptable” goods under this exception if returned to manufacturers or other businesses for recycling.
The Certain Individuals exception allows shipments by individuals regardless of the type of recipient or the specific reason for mailing (subject to various limitations, including the noncommercial-purpose condition). Although the statute expressly lists the return of damaged or unacceptable products as an example, the use of “including” before this statutory phrase makes clear that it is merely illustrative, not exhaustive.
As noted earlier in this section, the Certain Individuals exception does contain a requirement that the mailing be “for noncommercial purposes.”
One commenter reasoned that, because the return of damaged or unacceptable goods to the manufacturer is expressly allowed under this exception, the manufacturer should be allowed to use the exception to mail warranty replacement goods to adult consumers. However, the Certain Individuals exception provides only for adult “individuals” to mail ENDS for “noncommercial purposes.”
A Federal agency partner inquired whether the availability of the Certain Individuals exception for products exchanged as gifts could be construed as allowing businesses to distribute free samples, notwithstanding the FDA's general ban on free samples of tobacco products. See 21 CFR 1140.16(d). The Postal Service emphasizes that its mailability regulations, including those administering the PACT Act, do not supersede any other applicable regulation that might restrict or prohibit a given transfer, distribution, or other activity effected through the mails. See Publication 52 part 412 (“The mailer is responsible for ensuring that all Postal Service requirements, as well as all federal and state laws and local ordinances that apply to the shipment of an article of restricted matter, have been met.”). That said, as the name indicates, the Certain Individuals exception is not available for any and all noncommercial
Some anti-ENDS commenters suggested that this exception should be altogether abolished or disallowed, reasoning in one instance that the return of damaged or unacceptable ENDS products through the mail by individuals unlikely to be aware of hazmat requirements poses health risks to Postal Service employees. As discussed in section III.A.2, absent a legal impediment to its application to ENDS, the Postal Service lacks a delegation of legislative authority to disallow this or any other PACT Act exception on policy grounds.
Moreover, hazardous-materials concerns are already addressed through comprehensive mailing requirements in Publication 52. Those requirements have applied to individual mailers of ENDS products since long before the POSECCA, and they will continue to apply to mailings under the Certain Individuals exception. The hazardous-materials rules will continue to function to protect the health and safety of all who handle the mail. ENDS industry actors are strongly encouraged to promote awareness of all relevant mailing restrictions and requirements, including hazardous-materials rules, among ENDS consumers. See DMM section 601.9.4.1 (advertising, promotional, and sales matter soliciting or inducing the mailing of nonmailable hazardous materials is itself nonmailable).
Some anti-ENDS commenters recommended that mailers using the exception be required to sign a sworn, written statement or provide other verification that the recipient is above the age of 21, as opposed to the oral affirmation required under the preexisting rules and the proposed rule. See Publication 52 section 472.231.d. These commenters purported that such a measure is necessary because underage recipients continue to access mailed products that are putatively nonmailable under the PACT Act.
Such a requirement would be superfluous and unnecessarily burdensome. Age verification is already required at delivery. 18 U.S.C. 1716E(b)(4)(B)(ii)(V)-(VI). By contrast, the mailer is required merely to “affirm that the recipient is not a minor.”
A coalition of State and local attorneys general urged the Postal Service to impose a host of additional conditions on this exception by reference to their proposals under the Business/Regulatory Purposes exception. Although it was not entirely clear from the comment, the recommended additional conditions presumably include requiring product identification, certification of mailer and recipient eligibility, exclusion of delivery to Post Office Boxes and commercial mail receiving agencies (“CMRAs”), and signature upon delivery. These commenters argued that delivery provisions set out in 15 U.S.C. 376a(b)(4)(ii) should apply because they assert that 18 U.S.C. 1716E(b)(4)(B), supposedly lacking comparably stringent age verification protocols, does not go far enough to prevent illegal deliveries.
As noted in section III.A.2, the Postal Service has no discretion to impose additional conditions that Congress did not specify in 18 U.S.C. 1716E(b)(4)(B). If anything, the contrast with measures that Congress simultaneously adopted through amendments to the Jenkins Act indicates that Congress did not intend for such measures to govern mailability. As such, the final rule maintains the age-verification and delivery requirements set out for this exception in Publication 52 section 472.23.
An industry coalition suggested that the Postal Service allow prepaid mailing labels to be used for this exception, so that consumers would not bear the costs of returns to manufacturers. As explained in section III.G.5, the Postal Service has determined that Adult Signature service permits the fulfillment of the Postal Service's verification responsibilities under the PACT Act. At present, Adult Signature service is not available in conjunction with domestic return services that would allow for the use of prepaid mailing labels in this manner. See DMM ex. 503.1.4.1, .1.4.3; Postal Regulatory Comm'n, Mail Classification Schedule sections 2120.5, 2645.1.1.d (last edited Oct. 3, 2021), available at
The Consumer Testing exception allows “legally operating cigarette manufacturer[s]” (and their legally authorized agents) “to mail cigarettes to verified adult smoker[s] solely for consumer testing purposes.” 18 U.S.C. 1716E(b)(5)(A). The exception is subject to a number of conditions regarding manufacturer permitting, cigarette quantity, shipment frequency, tax compliance, payments from the manufacturer to recipients (not the other way around), age and identity verification, tracking and delivery confirmation, and recordkeeping, among other things.
The Public Health exception permits Federal agencies “engaged in the consumer testing of cigarettes for public health purposes” to mail “cigarettes” in the same manner as manufacturers under the Consumer Testing exception,
As relevant to both exceptions, “consumer testing” is limited to “formal data collection and analysis for the specific purpose of evaluating the product for quality assurance and benchmarking purposes of cigarette brands or sub-brands among existing adult smokers.”
In the notice of proposed rulemaking, the Postal Service noted that the use of “cigarettes” in these provisions raises an interpretive question. On the one hand, the POSECCA subsumes ENDS products within the term “cigarettes.” 15 U.S.C. 375(7). On the other hand, the exceptions are confined to packages containing “not more than 12 packs of cigarettes (240 cigarettes)”—quantities that denote standard packaging of combustible cigarettes but not ENDS products—and Congress did not amend those provisions to indicate how the quantity limits should apply to ENDS products. 18 U.S.C. 1716E(b)(5)(A)(ii), (C)(ii)(III). The Postal Service tentatively opined that it would be reasonable to construe the lack of accommodation for ENDS products here as rendering the exceptions inapplicable to ENDS products, and the Postal Service invited views and proposed alternative standards from commenters. 86 FR at 10220.
Public-health commenters generally opposed extending the Consumer Testing exception to ENDS manufacturers. One group of public-health organizations agreed with the notice of proposed rulemaking, in that the wide variety of ENDS packaging and Congressional silence on the matter indicate that Congress did not intend the exception to cover ENDS products. Another public-health organization noted that ENDS products do not have the same degree of standardization as cigarettes: For example, an ENDS pod containing 5 percent nicotine liquid may contain a roughly comparable amount of nicotine to 1-1.5 packs of combustible cigarettes, but more of the combustible cigarettes' nicotine is wasted, and less delivered to the user, due to so-called “sidestream smoke.” Moreover, ENDS liquids' sizes and concentrations vary widely. A third such organization raised policy objections regarding the likelihood that ENDS shipments would contain hazardous materials, would promote dangerous product returns under the Certain Individuals exception, and would pose difficulties in policing companies' representations about bona fide consumer testing.
On the other hand, one public-health organization, two law students, and certain ENDS industry commenters advocated for making the exception available to ENDS manufacturers. ENDS industry commenters relied on the POSECCA's inclusion of ENDS products within the term “cigarette,” concluding that ENDS products' entitlement to the exception must precede construction of the quantity condition, rather than the other way around. One such commenter, after repeating its general view that Congress did not intend to make ENDS products nonmailable, pointed out that consumer testing is necessary for ENDS manufacturers to fulfill requirements for FDA authorization. These and other commenters proposed various approaches to the quantity condition:
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The Postal Service appreciates these thoughtful suggestions, which are discussed in greater depth later in this section. Upon further review, however, it is unnecessary to evaluate the suitability of a quantity standard for ENDS products in connection with the Consumer Testing exception. Beyond the interpretive difficulties posed by the quantity limit, Congress has provided at least two other indications of legislative intent that the Consumer Testing exception applies only to combustible cigarettes and not to ENDS products, notwithstanding their technical inclusion within the term “cigarette” generally. After all, even statutorily defined terms can give way where context indicates that Congress intended a different meaning. See,
First, the exception is available only to “cigarette manufacturer[s]” with a permit “issued under section 5713 of the Internal Revenue Code of 1986.”
Second, the exception refers repeatedly to cigarettes in connection with a “smoker.” 18 U.S.C. 1716E(b)(5)(A), (b)(5)(C)(ii)(II)(aa), (b)(5)(D)(ii). This language clearly denotes combustion, rather than the sub-combustion-level heating that occurs in most ENDS products.
It should be noted that the Consumer Testing exception is unique among the PACT Act's exceptions in that it pertains specifically to “cigarettes” and not to the full range of “mailings” or “tobacco products” covered by the PACT Act. Compare
Against this backdrop regarding Congress's intent to apply the Consumer Testing exception only to combustible cigarettes and not to ENDS products, it is all the more clear that the quantity limit of “12 packs of cigarettes (240 cigarettes)” is intended to govern only combustible cigarettes, in which context such quantities are commonplace, and not ENDS products, which are not so standardized. The language itself suggests this conclusion; the context solidifies it.
While the commenters have proposed a range of original ideas for a potential equivalency standard, the Postal Service finds no occasion to consider application of such a standard here, where Congress's intent to exclude ENDS products from the exception is clear. That decision is buttressed by the fact that no proposed equivalency standard is self-evident or compelling.
Proposals focused on the exterior of the package, rather than its contents, would impose virtually no limit on the amount or type of ENDS products sent in an ostensible consumer testing shipment. This unfettered latitude is far from Congress's design of limiting the quantity of product
Proposals focused on the amount of nicotine fail to account for the multiple layers of variability that complicate such an exercise: The range of nicotine content among combustible cigarettes,
For these reasons, the Postal Service concludes that the PACT Act does not make the Consumer Testing exception available for ENDS products. It should be noted that the Intra-Alaska/Intra-Hawaii exception would permit the mailing of ENDS products for any purpose, including consumer testing, with the only restriction being that the mailing occur entirely within Alaska or Hawaii. Otherwise, barring further legislative change, such activities must employ transportation and delivery methods that do not involve the mails.
Two of the public-health organizations that opposed allowing the Consumer Testing exception for ENDS products nonetheless favored allowing the Public Health exception. One such commenter analogized the situation to the restrictions on mailing dangerous goods, which contain exceptions for scientific-use mailings, see 18 U.S.C. 1716(c), (e), and suggested that the Postal Service make the exception available only upon agreement with the relevant Federal agency. Federal agency partners with which the Postal Service consulted also expressed an interest in making the Public Health exception available for ENDS products, in order
The Postal Service reiterates that it must be guided by the parameters and policy decisions expressed in the statute; Congress did not authorize the Postal Service to make its own policy decisions about whether any exception, including the Public Health exception, ought to be extended to ENDS products. Particularly given that lack of policy discretion, the Postal Service is not at liberty to speculate about what Congress might have intended regarding public-health testing of ENDS products by Federal regulatory agencies, in the absence of any statutory language or legislative history clearly addressing the question.
Like the Consumer Testing exception, the statutory language establishing the Public Health exception, which Congress likewise did not amend in the POSECCA, makes clear that the exception applies only to combustible cigarettes and not to ENDS products.
First, the Public Health exception repeatedly uses the term “consumer testing,” a defined term restricted to testing involving “smokers.” 18 U.S.C. 1716(b)(5)(D)(ii), (b)(6). As discussed in the preceding section, the plain meaning of “smoker” indicates that the context is combustible cigarettes, not ENDS products.
Second, the Public Health exception allows Federal agencies to “mail cigarettes under most of the same requirements, restrictions, and rules and procedures that apply to consumer testing mailings of cigarettes by manufacturers under” the Consumer Testing exception.
Third, the quantity limit discussed in the preceding section also governs the Public Health exception in the same manner as the Consumer Testing exception. As discussed in the preceding section, the quantity limit reinforces the conclusion that only combustible cigarettes, and not ENDS products, are amenable to these exceptions.
Given these clear indications of Congressional intent and the Postal Service's general lack of statutory authority over the scope of PACT Act exceptions, the Postal Service finds no basis to treat the two exceptions as differing in scope due to policy reasons that were not expressed by Congress.
Certain public-health-oriented commenters urged the Postal Service to permit the mailing of ENDS products from independent researchers or research organizations—not manufacturers or Federal agencies—to individuals for purposes of federally-funded public health research.
As explained in section III.A.1, the Postal Service lacks statutory authority to create new exceptions. Congress provided narrow exceptions for consumer testing only by manufacturers and Federal agencies, and not by any other entity. Moreover, as explained in the preceding two sections, even those exceptions do not cover ENDS products. Therefore, other than mailings entirely within Alaska and Hawaii (as authorized by the Intra-Alaska/Intra-Hawaii exception), researchers must find ways to conduct their consumer testing that do not involve use of the mails. To the extent that a policy case can be made for this use of the mails, that case should be directed to Congress, which has reserved to itself the discretion to modify or augment the PACT Act's exceptions.
Except for the Intra-Alaska/Intra-Hawaii exception, the PACT Act's exceptions are not expressly confined to domestic mail. As the Postal Service explained in the 2010 rulemaking concerning PACT Act implementation, however, the complex verification requirements for the PACT Act's exceptions, combined with the strict consequences of any noncompliance, render it impracticable, if not impossible, for these requirements to be fulfilled as to mail originating or destinating outside of the United States. 75 FR at 29665; 75 FR at 24535. In the notice of proposed rulemaking, the Postal Service proposed to maintain the same approach to the exceptions in the context of ENDS products, except potentially with respect to any products that may eventually be covered by the tobacco-cessation/therapeutic exclusion. 86 FR at 10219.
One group of public-health-oriented commenters applauded the disallowance of exceptions for international mail and the extension of that policy to ENDS products. Contrariwise, one ENDS manufacturer asserted that the policy violates the statute, which, according to the commenter, frames the exceptions in terms that provide an affirmative entitlement to mail without restriction to domestic mail. The commenter noted that the Business/Regulatory Purposes exception expressly encompasses businesses involved in “export” and “import,” see 18 U.S.C. 1716E(b)(3)(A)(i), and opined that the statutory conditions for each exception
The final rule maintains the approach outlined in the notice of proposed rulemaking. The issue is not whether the statute expressly addresses international mail or whether it expressly provides for feasibility-based discretion. Rather, the statutory exceptions permit mailing only to the extent that the Postal Service is able to verify certain things about the mailer and/or recipient. See,
As the industry commenter observes, the Business/Regulatory Purposes exception is available to legally operating businesses “engaged in tobacco product . . . export [and] import.”
In response to the Federal agency partner's concern regarding effective regulation, the Postal Service is sympathetic to this policy interest. Again, however, Congress has imposed verification conditions for use of the mails that the Postal Service is unable to fulfill with respect to international shipments. Non-postal delivery channels may be available to facilitate the transfer of samples and covered items between foreign businesses and U.S. regulators. To the extent that use of the mails would be necessary or expedient to effective regulation, it is for Congress to weigh whether that policy interest warrants relaxation of the PACT Act's verification mandates, creation of a new exception, or some other legislative accommodation.
Certain pro-ENDS commenters urged the Postal Service to ensure that ENDS products will be mailable to U.S. military service members overseas on the same terms as cigarettes and smokeless tobacco. As stated in the notice of proposed rulemaking, the PACT Act exceptions have long been inapplicable to “mail
Upon further review and interagency consultation, it appears that the same is true for the PACT Act exceptions' requirements of age, employment, and identity verification at the place of delivery. See 18 U.S.C. 1716E(b)(3)(B)(ii)(II), (b)(3)(B)(ii)(VII), (b)(4)(B)(ii)(V),
The PACT Act bars the acceptance or transmission of mailed packages as to which the Postal Service “knows or has reasonable cause to believe contains” matter made nonmailable by the PACT Act. 18 U.S.C. 1716E(a)(1). “Reasonable cause” can be based upon certain public statements of intent to mail nonmailable items or the presence of a person on the Noncompliant List.
In the notice of proposed rulemaking, the Postal Service noted that the statute's use of “includes” before these enumerations of “reasonable cause” plainly indicates that the list is illustrative, rather than exhaustive, and the Postal Service proposed to make explicit in its regulations the possibility that other indicia regarding a package, individually or in combination with other packages, may give rise to reasonable cause. 86 FR at 10219. In the highly circumstantial context of ENDS products, the Postal Service further proposed to elaborate on the burden-shifting principle by calling for affirmative, credible, and verifiable indications of mailability in order to dispel the presumed nonmailability of such products.
Some anti-ENDS commenters expressed general support for these changes, and no party expressed opposition. Therefore, the Postal Service adopts the proposed changes in this final rule.
State and local attorneys general, a public-health organization, and a law student proposed enumerating additional bases for identifying parties whose association with a package may give rise to reasonable cause:
• Identification of a party in scientific journal articles about ENDS products;
• Involvement of an ENDS manufacturer or distributor in litigation;
• Public statements on social media;
• Other media sources;
• The presence of markings on a package pursuant to section 2A(b)(1) of the Jenkins Act;
• Lists of entities licensed by a State or local government to engage in tobacco or ENDS industry activities;
• The use of a Post Office Box or CMRA; and
• A mailer's past practice of sending or receiving items made nonmailable under the PACT Act.
Because the list of “reasonable cause” indicia in Publication 52 section 472.1 is merely illustrative, the other proposed information sources remain potentially available, even if they are not expressly enumerated. To the extent that any relevant information not only exists at large, but is brought to the actual attention of Postal Service personnel authorized to determine how to interpret and act upon that information, then that awareness may reasonably justify the Postal Service's treatment of associated mailings as nonmailable, absent contrary information sufficient to dispel reasonable cause.
One law-student commenter expressed concern that the Noncompliant List may be unreliable, given the purported ease with which listed actors could rebrand or establish a new address. The Postal Service is not responsible for maintaining the Noncompliant List. However, it should be noted that section 2A(e)(1)(C) of the Jenkins Act directs the Attorney General to update and distribute the Noncompliant List at least once every four months, and related provisions require the Attorney General to include entities identified by State, local, and Tribal governments and to maintain the accuracy and completeness of the list. Moreover, no provision bars other parties from identifying inaccuracies or suggesting updates to the Attorney General.
State and local attorneys general requested a point of contact for non-Postal-Service law-enforcement actors, the industry, and the general public to report suspicious mailing behavior. The Postal Inspection Service (
One law-student commenter encouraged the Postal Service to ensure that relevant personnel are trained and given up-to-date information about the Noncompliant List and market research on ENDS mailers. The Postal Service has internal processes to communicate such information to relevant personnel, and it will take this comment under advisement in administering those internal communications.
Another law-student commenter proposed that a suspected ENDS mailer be required to furnish a sworn certification of mailability, punishable by a fine. The Postal Service finds such a measure to be unnecessary. Under the reasonable cause standard, mailability is based on indicia of suspicion—a collection of facts indicating for and against mailability—weighed in the administrative and law-enforcement discretion of Postal Service personnel. It is difficult to conceive of why facts tending in one direction should require the submission of paperwork when other facts would not. Moreover, the making of materially false statements or representations to the Postal Service is punishable under 18 U.S.C. 1001, regardless of whether the person has made a sworn declaration or received specific notice of potential punishment. As such, the Postal Service does not perceive any practical benefit that would arise from this suggestion.
In the notice of proposed rulemaking, the Postal Service discussed the semantic difficulties posed by the POSECCA's technical inclusion of ENDS within the relevant statutory definition of “cigarettes.” 86 FR at 10219. While this has a pronounced legal effect—generally subjecting ENDS to the same legal treatment as combustible cigarettes—there are clear differences in the two types of products, particularly given the broad scope of POSECCA-covered ENDS products. Hence, using the term “cigarette” in Publication 52 to denote ENDS products as well as combustible cigarettes might not offer sufficient clarity to a lay reader. The Postal Service proposed to use “tobacco products” as a catch-all term to encompass combustible cigarettes, smokeless tobacco, and ENDS products, due to Congress's use of that term in the PACT Act (and the lack of any amendment to that usage in the POSECCA). In doing so, the Postal Service acknowledged that even “tobacco products” is imperfect as applied to ENDS products, many of which do not derive from tobacco, and solicited commenters' suggestions.
Commenters presented various views, often independent of their position on ENDS products generally. Some commenters accepted and even agreed with “tobacco products” as a catch-all term, noting that at least some ENDS liquids contain tobacco-derived nicotine and that Congress intended ENDS to be regulated in the same manner as cigarettes and smokeless tobacco. Others supported a slightly disaggregated catch-all term, such as “tobacco and vapor products,” “cigarettes and alternative tobacco products,” “nicotine products and delivery devices,” or “tobacco and nicotine-related delivery products.” Still other commenters opposed the use of a catch-all term, but rather proposed a continued serial listing (“cigarettes, ENDS, and smokeless tobacco”). This last group opposed the use of an umbrella term for various reasons: ENDS products might not be thought of as “tobacco products;” “tobacco products” is a term with special significance but a different scope in other legal contexts; and ENDS products should not be equated with cigarettes due to purported differences in their level of harmfulness.
Upon consideration of these views, the Postal Service agrees that the umbrella term “tobacco products,” while consistent with statutory usage, might pose an undue risk of misleading lay readers of the regulations. Notwithstanding the post-POSECCA PACT Act's continued use of “tobacco products” as an apparent (albeit undefined) umbrella term, catch-all terms relying on “tobacco” or “nicotine” do not adequately capture the wide range of ENDS products covered by the POSECCA. Of the proffered options, “tobacco and vapor products” best captures the distinction between cigarettes and smokeless tobacco, on the one hand, and potentially non-nicotine-based ENDS products, on the other hand. Yet even it has its shortcomings: It elides the degree of overlap between the two categories, and the level of generality may sacrifice clarity.
The Postal Service has determined that the well-taken semantic concerns can be avoided through use of the more generic, all-encompassing term “covered products” to refer collectively to cigarettes, smokeless tobacco, and
Three ENDS industry commenters asked the Postal Service to issue an updated Field Information Kit regarding the mailability of ENDS products, similar to the ones that it issued upon implementing the original and earlier amended PACT Act. See Postal Service, Field Information Kit: PACT Act, Postal Bulletin No. 22,287, June 17, 2010, at 3-17,
In conjunction with this
A group of State and local attorneys general asked the Postal Service not to return to sender matter made nonmailable under the PACT Act, but to seize and destroy it instead. These commenters adverted to ongoing litigation that some of them have brought on this issue. See generally
One ENDS consumer expressed skepticism that the POSECCA will be enforceable, to the extent that vendors send products below the supposed weight threshold for Postal Service enforcement without publicly advertising or marking their product. While it is conceivable that some illegal activity will evade detection in any law-enforcement scheme, each of the commenter's premises is false. First, there is no weight threshold for Postal Service enforcement of mailability; the Postal Service can and does enforce mailability laws regardless of weight, shape, or other mailpiece characteristics. Second, a vendor that does not advertise its sales is unlikely to remain a vendor for long. Third, the presence of identifying markings is not a prerequisite for detection of nonmailable matter; indeed, few shippers of the substantial quantities of nonmailable contraband detected by the Postal Inspection Service and its Federal law-enforcement partners transparently indicate the illicit contents that they are shipping.
Finally, a commercial mailing agent asked for clarification of its duty to enforce the POSECCA and PACT Act and its liability for its customers' mailings. As already provided in Postal Service regulations, all mailers, including mail service providers and mailing agents, must comply with applicable Postal Service laws and regulations governing mailability and preparation for mailing, as well as non-postal laws and regulations on the shipment of particular matter. Publication 52 section 212. In other words, a mail service provider or mailing agent, as a mailer on behalf of a third party, is liable for violations of mailing laws in the same manner as any other mailer. Mail service providers and mailing agents may limit their liability risk by taking robust measures to identify attempts to use their services for unlawful purposes.
Some commenters urged the Postal Service to make the text of the proposed or new rules available as soon as possible. At the time of the notice of proposed rulemaking, Publication 52 was incorporated by reference in 39 CFR 113.2. As such, the Office of the Federal Register did not permit the text of revisions or proposed revisions to Publication 52 to appear in the attendant
Three ENDS industry commenters urged the Postal Service to publish the text of the final rules in advance of formal publication. It is unclear what this suggestion is supposed to mean. The Postal Service is unaware of any rulemaking practice whereby a final rule is published twice, once “informally” and once “formally.” There is only publication of the final rule, which, in this case, immediately triggers the nonmailability of ENDS products. If the commenters' idea is that the Postal Service should publish the rules first and the response to comments later, then this, too, does not appear to comport with regular Federal rulemaking practices, and it might raise concerns about due process and APA compliance. As such, the Postal Service has opted for consistency with normal practices, while attempting to enhance awareness and clarity through issuance of the April 2021 Guidance.
One law student recommended that the Postal Service periodically review the final rule for potential revisions to account for subsequent research regarding ENDS products. The commenter suggested that the review occur one year after the end of the FDA's period for premarket tobacco product applications and every three years thereafter.
The Postal Service appreciates that research on the public-health risks and benefits arising from ENDS products, as well as the market for ENDS products itself, is in a state of rapid evolution. This final rule itself is likely to have its own effects on the ENDS market and on public health.
As discussed in section III.A, however, this rulemaking is not an
That said, the Postal Service may eventually have other reasons to revisit this final rule, such as further changes in applicable law; evolution in the ENDS market; further guidance from ATF on the scope of covered ENDS products; potential FDA approval of ENDS products for tobacco-cessation or other therapeutic uses; advances in technology that may facilitate alternative methods for administering the Business/Regulatory Purposes exception; and the development of regulatory and enforcement experience regarding ENDS products. Because these (and other, unforeseen) circumstances are not predictable, the Postal Service finds it imprudent to prescribe a schedule of revisions at this time.
The final rule includes substantive revisions and additions to Publication 52, as well as non-substantive corrections for consistency and organization, such as extensive renumbering to accommodate substantive revisions.
Material substantive revisions from the proposed rule that are incorporated throughout the final rule include the following:
• “Covered products,” defined in section 471.6 as any cigarette, smokeless tobacco, or ENDS, replaces “tobacco products” where applicable.
• Marking requirements for mailings under nonmailability exceptions are revised to provide options for distinguishing among covered products and eligible recipients where applicable.
• Application requirements for the Business/Regulatory Purposes, Consumer Testing, and Public Health exceptions are revised to (1) allow for submission of applications by email to a specified Postal Service email address; (2) require submission of specified Postal Service forms and/or worksheets; (3) clarify that copies of licenses may be furnished (in lieu of originals); (4) clarify the timeframe (
• Application requirements for the Business/Regulatory Purposes and Public Health exceptions are revised to specify that the PCSC Director may suspend, modify, or rescind discretionary waivers for federal or state government agencies of certain application requirements.
• Mailing requirements for the Business/Regulatory Purposes and Consumer Testing exceptions are revised to require that a current PCSC eligibility letter be presented at acceptance, to acknowledge that lists of authorized senders and recipients will be made available to acceptance personnel, and to clarify that such mailings may be tendered at retail or BME locations.
• Mailing requirements for the Business/Regulatory Purposes and Certain Individuals exceptions are revised to reflect current Postal Service offerings by requiring the use of a combination of Priority Mail Express or Priority Mail with Adult Signature Required or Adult Signature Restricted Delivery. Mailing requirements for the Consumer Testing and Public Health exceptions are similarly revised to require the use of a combination of Priority Mail Express or Priority Mail with Adult Signature Restricted Delivery.
• Delivery requirements for the Business/Regulatory Purposes and Consumer Testing exceptions are revised to clarify that mailings lacking the PCSC eligibility number in the return block will not be released to recipients.
• Delivery requirements for the Certain Individuals and Consumer Testing exceptions are revised to clarify that the minimum age of recipients must be confirmed by Postal Service personnel before mailings may be released or delivered to recipients.
Discrete substantive revisions include the following:
• The proposed definition of “e-liquid” in proposed section 471.3 is deleted as redundant.
• A consolidated definition of “minimum age,” defined as 21 years of age, or older where required by local law for acceptance or delivery, is added in section 471.9.
• General provisions regarding nonmailability and reasonable cause in proposed 472.1 are reorganized as sections 472.1 and .2. The circumstances giving rise to nonmailability are delineated more specifically; the treatment of nonmailable matter found in the mails and not seized is clarified through a cross-reference to general provisions on that topic; and clarification is made that nonmailable covered products must not be accepted, forwarded, or delivered.
• The “reasonable cause” standard for Postal Service personnel in proposed section 472.1 is clarified to allow consideration of any potentially relevant circumstances.
• A new section 473.b clarifies that the PACT Act exceptions do not apply to mail from the United States to APO, FPO, or DPO addresses. As explained in section III.J.1, the postal services necessary to reliably fulfill the PACT Act exceptions' verification requirements are not currently available at such locations, and at this time, there does not appear to be any sufficiently reliable alternative means of ensuring that those requirements are fulfilled. In conformance with this change, provisions are removed from the Certain Individuals section that had formerly prescribed how shipments can be made to APO/FPO addresses.
• A new section 473.1.e consolidates the requirement, common to all PACT Act exceptions, that all excepted shipments must be tendered through a face-to-face transaction with a Postal Service employee. For clarity, the requirement is framed here in the negative, as a prohibition on all other entry methods, and enumerates examples of prohibited entry methods.
• Language is added to the preamble of the Business/Regulatory Purposes exception provisions to clarify not only the types of parties eligible to mail under the exception, but the specific sender-addressee pairings permitted by the PACT Act (
• Application requirements for the Business/Regulatory Purposes exception are further revised to include additional required information relating to (1) the
• Delivery requirements for the Business/Regulatory Purposes exception are revised to provide examples of methods for verifying a recipient's employment. Specifically, proof of employment may take the form of an employee identification card or badge containing the name and phone number of the employer/agency along with the name of the employee; a signed letter on employer/agency letterhead; or any form of identification the postmaster deems to be of comparable reliability. Further clarification is made that employee status may be inferred by Postal Service personnel based on observable factors.
• Provisions are added regarding the Certain Individuals exception to emphasize the noncommercial-purpose requirement and to clarify how it applies in the context of returns of damaged or unacceptable merchandise and of used products sent for recycling.
• Application requirements for the Consumer Testing exception are revised to require submission of a copy of the permit issued under 26 U.S.C. 5713. Conversely, language is added to the Public Health exception provision to clarify that a manufacturer's permit is not required for government agencies applying under that exception.
• The additional requirements set out in proposed section 472.27 are relocated to section 472.3 and revised to clarify the applicability of other laws and regulations.
• Mailers' requirements to retain eligibility documentation under applicable nonmailability exceptions are increased from three to six years to align with potentially applicable statutes of limitations and are set out separately in section 472.4.
• Revisions and additions are made to clarify that applicants bear the burden, during initial determinations or appeals, of establishing eligibility for each sender and recipient, and must submit additional documentation as necessary. Further clarification is made that the PCSC Director may approve or deny applications in whole or with respect to certain mailers or recipients, and that eligibility may be suspended, modified, or revoked, in whole or in part, for failure to comply with applicable laws or regulations.
• A new section 474.1 is added to clarify that ATF administers the relevant statutory definition of ENDS and the exclusion of FDA-approved tobacco-cessation and therapeutic products. Persons interested in interpretive guidance concerning these two subjects are advised to contact ATF at the listed address, with a copy to the PCSC.
• The statutory exclusion of FDA-approved tobacco cessation/therapeutic products from the definition of ENDS in proposed section 471.2 is set out separately in section 474.2, and a requirement is added for persons who believe that a product qualifies for this exclusion to submit documentation to ATF, with a copy to the PCSC.
The Postal Service adopts the following changes to Publication 52,
* * * The term cigarette includes roll-your-own tobacco and excludes cigars.
Any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device. ENDS include but are not limited to, electronic cigarettes (e-cigarettes), electronic hookahs (e-hookahs), electronic cigars (e-cigars), vape pens, advanced refillable personal vaporizers, and electronic pipes. Any reference to ENDS also includes any component, liquid, part, or accessory of an ENDS device, regardless of whether the component, liquid, part, or accessory is sold or provided separately from the device.
For purposes of chapter 47, any cigarette, smokeless tobacco, or ENDS.
21 years of age (the federal minimum age for the sale or purchase of covered products), or such higher age that a state or municipality may impose for the legal sale or purchase of covered products at the place of acceptance or delivery, as appropriate.
The following are nonmailable:
a. Shipments of covered products described in 473.1.a through .e.
b. Shipments of covered products that are not described in 473.1.a through .e and that do not qualify for an exception under 473.2 through .6.
c. Shipments of covered products that are not described in 473.1.a through .e and that would generally qualify for an exception under 473.2 through .6, but for a failure to meet one or more conditions for the applicable exception. For example, a recipient may fail to be verified as being of at least the minimum age (see 473.34.a, .44.a, .54.a), or a Return Receipt may be absent or may lack the mailer's eligibility number (see 473.32.b, .52.c).
The Postal Service will not accept, forward, or deliver any package that it knows, or has reasonable cause to believe, contains nonmailable covered products. If the Postal Service reasonably suspects that a mailer is tendering nonmailable covered products, then the mailer bears the burden of proof in establishing eligibility to mail.
Nonmailable covered products deposited in the mail are subject to seizure and forfeiture. Any nonmailable covered products seized and forfeited shall be destroyed or retained by the federal government for the detection or prosecution of crimes or related investigations and then destroyed.
Any nonmailable covered products not seized and forfeited shall be handled in accordance with 216 and 414.
Persons involved in the shipment or attempted shipment of nonmailable covered products may be subject to seizure and forfeiture of assets, criminal fines, imprisonment, and civil penalties.
Among any other potentially relevant circumstances, the Postal Service has reasonable cause to suspect the presence of covered products based on:
a. A statement on a publicly available website, or an advertisement, by any person that the person will mail matter which is nonmailable under this section in return for payment;
b. The fact that the mailer or other person on whose behalf a mailing is being made is on the U.S. Attorney General's List of Unregistered or Noncompliant Delivery Sellers; or
c. Any other characteristics of a package or label, individually or in combination with other packages or labels, that reasonably indicate the likely presence of covered products.
Shipments permitted under 473 are subject to all other applicable federal, state, and local laws and regulations. For example, ENDS that consist of or contain controlled substances (including cannabis and cannabis derivatives), drug paraphernalia, lithium batteries, liquids, or any toxic or flammable substance (
Mailers, recipients, and applicants must maintain records to establish compliance with the requirements in 473 for a 6-year period and must make such records available to the Postal Service upon request.
Covered products are mailable if one of the conditions in 473.2 through 473.6 is met. These exceptions do not apply to the following:
a. Mail treated as domestic under DMM 608.2.2.
b. Mail sent to Air/Army Post Office (APO), Fleet Post Office (FPO), or Diplomatic Post Office (DPO) addresses.
c. Mail presented at APO, FPO, or DPO installations and destined to addresses in the United States.
d. International mail as defined in DMM 608.2.3.
e. Mail presented outside of a face-to-face transaction with a Postal Service employee at a Postal Service retail or business mail acceptance location. Examples of prohibited entry methods include, but are not limited to, Pickup on Demand; package pickup; an Approved Shipper location or other third-party acceptance location; a Contract Postal Unit; a Village Post Office; and placement in a customer mailbox, collection box, or Postal Service lobby drop.
Intra-Alaska and intra-Hawaii shipments of covered products are mailable, provided that such mailings:
a. Are presented in a face-to-face transaction with a Postal Service employee within the state, and not through any entry method prohibited under 473.1.e;
b. Destinate in the same state of origin;
c. Bear a valid complete return address that is within the state of origin; and,
d. Are marked with the following exterior marking on the address side of the mailpiece, with the relevant type of item selected: “INTRASTATE SHIPMENT OF [CIGARETTES/SMOKELESS TOBACCO/ENDS].”
Eligibility to mail and to receive mail under the business/regulatory purposes exception is limited to federal and state government agencies and legally operating businesses that have all applicable state and federal government licenses or permits and are engaged in the manufacturing, distribution, wholesale, export, import, testing, investigation, or research of covered products. Mailings under this exception are permitted only for business purposes between eligible businesses or for regulatory purposes between such businesses and eligible government agencies. Mailability is further restricted to mailings that comply with all conditions in 473.31 to 473.34.
Each customer seeking to mail covered products under the business/regulatory purposes exception must submit a complete application (PS Form 4615 or 4615E, as appropriate) and, for ENDS, complete Worksheets 4615-EM and 4615-ER as appropriate, along with all supporting documentation requested on those forms and worksheets.
a. Along with any other information requested on PS Form 4615 or 4615E and Worksheets 4615-EM and 4615-ER, the applicant must furnish:
1. Information about its legal status, copies of any applicable licenses, and authority under which it operates.
2. Information about the legal status, copies of any applicable licenses, and operational authority for all recipients to which the mailings under this exception will be addressed.
3. All locations where mail containing covered products will be presented.
4. For each business mailer and/or recipient, the nature of the relevant business activities (
5. The brand name and a description of each product intended to be mailed. For ENDS, descriptions must include information about the source of any CBD; the concentration of any THC; and safety data sheets or technical specification documentation for any hazardous materials (
b. The applicant is responsible for establishing the eligibility of each sender and recipient and for the accuracy, completeness, and currency of all information provided in the application.
c. Applications must be submitted as follows:
1. For cigarettes and smokeless tobacco (PS Form 4615): by email to
2. For ENDS (PS Form 4615E and Worksheets 4615-EM and 4615-ER): by email to
d. The Director, PCSC, will make a determination of eligibility to mail under the business/regulatory purposes exception. The mailer bears the burden of establishing eligibility and must furnish any additional supporting documentation requested by the Director, PCSC, upon request as necessary to establish eligibility. The Director, PCSC, may approve or deny an application in its entirety or only with respect to certain mailers and/or recipients. A number is assigned to each letter of eligibility.
e. The applicant must update the information in its application, including any updated documentation, in a timely manner, as necessary, at least 15 days prior to conducting any mailing to or from an entity to which the information pertains.
f. Upon written request by a state or federal agency, the Director, PCSC, may, in his or her discretion, waive certain application requirements for mailings entered by the requesting state or federal agency for regulatory purposes. The Director, PCSC, may suspend, rescind, or modify any waiver at any time.
g. Any determination of eligibility to mail under this exception shall lapse if the authorized mailer does not tender any mail under this exception within any 3-year period. After that time, the affected mailer must apply for and receive new authorization for any mailings under this exception.
All mailings tendered under the business/regulatory purposes exception must:
a. Use one of the following combinations of services:
1. Priority Mail Express with Adult Signature Required or Adult Signature Restricted Delivery service (see DMM 503.8.0).
2. Priority Mail with Adult Signature Required or Adult Signature Restricted Delivery service.
b. Be accompanied by a Domestic Return Receipt (PS Form 3811). The sender`s address block must bear the eligibility number issued by the PCSC and be made returnable to the address as shown below:
PCSC, PACT MAILING OFFICE, USPS ELIGIBILITY NO. XX-00-0000, 90 Church St., Ste. 3100, New York, NY 10007-2951.
c. Bear the following marking, with the relevant type of item and recipient selected: “[CIGARETTE/SMOKELESS TOBACCO/ENDS] MAILING—DELIVER ONLY TO EMPLOYEE OF ADDRESSEE [BUSINESS/AGENCY] UPON AGE VERIFICATION” on the address side of the mailpiece.
d. Bear the business or government agency name and full mailing addresses of both the sender and recipient, both of which must match exactly those listed on the authorized mailer's application on file with the Postal Service.
e. Be entered at a retail and/or business mail acceptance location specified in the application and authorized by the PCSC.
Mailings under the business/regulatory purposes exception must be entered under the following conditions:
a. Covered products must be tendered via a face-to-face transaction with a Postal Service employee. Applicable mailings may not be tendered through any entry method prohibited under 473.1.e.
b. The mailer must present Postal Service acceptance personnel with the following:
1. For shipments of cigarettes and/or smokeless tobacco, a letter from the PCSC showing that the PCSC has authorized the mailer, addressee, and acceptance location.
2. For shipments of ENDS:
i. A letter from the PCSC showing that the PCSC has authorized the mailer and has not withheld authorization as to the addressee;
ii. A PCSC-approved Worksheet 4615-EM showing that the PCSC has authorized the mailer and the acceptance location; and
iii. A PCSC-approved Worksheet 4615-ER showing that the PCSC has authorized the addressee.
Mailings bearing the marking for business/regulatory purposes are eligible for delivery only to a verified employee of the addressee business or government agency under the following conditions:
a. The recipient must be an adult of at least the minimum age (see 471.9) at the place of delivery. The recipient's age must be verified by a postal employee before releasing or delivering the item to the recipient. The recipient must furnish proof of age via a driver's license, passport, or other government-issued photo identification that lists age or date of birth.
b. The recipient must demonstrate status as an employee of the business or government agency identified as the addressee on the mailing label. Proof of employment may take the form of an employee identification badge or card issued by the employer and including the employee's name, the employer's name, and the employer's telephone number; a signed letter on company or agency letterhead from a supervisor or human relations office attesting to the recipient's current employment; or any other form of identification that the postmaster deems to be of comparable reliability. Where delivery is made to a business address, employment status may be inferred from the carrier's observation of such factors as the recipient's uniform and presence at a reception desk or retail counter.
c. Once the recipient's age and identity as an employee of the addressee are established, the recipient must sign for receipt of delivery and in the appropriate signature block of PS Form 3811.
The exception for certain individuals permits the mailing of small quantities of covered products by individual adults for noncommercial purposes. Mailability is further restricted to mailings that comply with all conditions in 473.41 to 473.44. Eligible shipments may be made to any type of recipient (individual, business, government, or other organization).
Noncommercial purposes may include, but are not limited to, the following:
a. Covered products exchanged as gifts between individual adults. For purposes of this rule, “gifts” do not include covered products purchased by one individual for another from a third-party vendor through a mail-order transaction, or the inclusion of covered tobacco products at no additional charge with other matter pursuant to a commercial transaction.
b. Damaged or unacceptable covered products returned by a consumer to the manufacturer or other business. For purposes of the noncommerciality requirement, the manufacturer or other business may provide the consumer with a refund, credit, replacement product, or other form of value in exchange for the damaged or unacceptable covered product, so long as it does not exceed the amount that the consumer paid for the damaged or unacceptable product plus the cost of return shipping for the damaged or unacceptable product.
c. Used covered products sent by a consumer to a manufacturer or other business for recycling. For purposes of this rule, the consumer must not receive anything of value (
No customer may send or cause to be sent more than 10 mailings under this exception in any 30-day period. Each mailing under the certain individuals exception must:
a. Weigh no more than 10 ounces.
b. Use one of the following combinations of services:
1. Priority Mail Express with Adult Signature Required or Adult Signature Restricted Delivery service (see DMM 503.8.0).
2. Priority Mail with Adult Signature Required or Adult Signature Restricted Delivery service.
c. Bear the full name and mailing address of the sender and recipient on the Priority Mail Express or Priority Mail label.
d. Bear the following exterior marking on the address side of the mailpiece, with the relevant type of item selected: “PERMITTED [CIGARETTE/SMOKELESS TOBACCO/ENDS] MAILING—DELIVER ONLY UPON AGE VERIFICATION.”
Mailings under the certain individuals exception must be entered under the following conditions:
a. Covered products must be tendered via a face-to-face transaction with a Postal Service employee. Applicable mailings may not be tendered through any entry method prohibited under 473.1.e.
b. The individual presenting the mailing must furnish a driver's license, passport, or other government-issued photo identification that lists age or date of birth. The name on the identification must match the name of the sender appearing in the return address block of the mailpiece. The customer must be an adult of at least the minimum age at the place of acceptance (see 471.9).
c. For mailings addressed to an individual, at the time the mailing is presented, the customer must orally confirm that the addressee is an adult of at least the minimum age at the place of delivery (see 471.9).
Mailings bearing the marking for certain individuals are eligible for delivery only under the following conditions:
a. The recipient receiving or signing for the article must be an adult of at least the minimum age at the place of delivery (see 471.9). This must be confirmed by postal employees before releasing or delivering the item to the recipient. The recipient must furnish proof of age via a driver's license, passport, or other government-issued photo identification that lists age or date of birth.
b. Once age is established, the recipient must sign for receipt of delivery.
The consumer testing exception permits a legally operating cigarette manufacturer or a legally authorized agent of a legally operating cigarette manufacturer to mail cigarettes to verified adult smokers solely for consumer testing purposes. The manufacturer for which mailings are entered under this exception must have a permit, in good standing, issued under 26 U.S.C. 5713. The consumer testing exception applies only to cigarettes and not to smokeless tobacco or ENDS. Mailability is further restricted to mailings that comply with all conditions in 473.51 to 473.54.
Each person seeking to mail cigarettes under the consumer testing exception must submit a complete application (PS Form 4616), along with all supporting documentation requested on that form, by email to
a. The applicant must furnish the following information:
1. A copy of the relevant manufacturer's permit issued under 26 U.S.C. 5713.
2. If the applicant is an agent of a manufacturer, complete details about the agency relationship with the manufacturer.
3. All locations where mail containing cigarettes for consumer testing will be presented.
b. As part of its application, the applicant must certify in writing that it will comply with the following requirements:
1. Any recipient of consumer testing samples of cigarettes is an adult established smoker.
2. No recipient has made any payment for the cigarettes.
3. Every recipient will sign a statement indicating that the recipient wishes to receive the mailings.
4. The manufacturer or the legally authorized agent of the manufacturer will offer the opportunity for any recipient to withdraw the recipient's written statement at least once in every 3-month period.
5. Any package mailed under this exception will contain no more than 12 packs of cigarettes (maximum of 240 cigarettes) on which all taxes levied on the cigarettes by the state and locality of delivery have been paid and all related state tax stamps or other tax-payment indicia have been applied.
c. The application must be submitted to the Director, Pricing and Classification Service Center (PCSC) via email to
d. The applicant must provide any requested copies of records establishing compliance to the Director, PCSC, and/or the Director, Product Classification (see 214 for address), upon request, no later than 10 business days after the date of the request.
e. The Director, PCSC, will make a determination of eligibility to mail under the consumer testing exception. The Director, PCSC, may approve or deny an application in its entirety or only with respect to certain mailers and/or recipients. A number is assigned to each letter of eligibility.
f. An applicant or authorized mailer must update the information in its application with the Director, PCSC, as necessary, in a timely manner upon becoming aware of a change in application information, not later than 15 days prior to conducting any mailing, for as long as it continues to mail under the consumer testing exception.
g. Any determination of eligibility to mail under this exception shall lapse if the authorized mailer does not tender any mail under this exception within any 3-year period. After that time, the mailer must apply for and receive new authorization for any further mailings under this exception.
All mailings under the consumer testing exception:
a. Must be limited in tobacco content to no more than 12 packs of cigarettes (maximum 240 cigarettes) on which all taxes levied on the cigarettes by the destination state and locality have been paid and all related state tax stamps or other tax-payment indicia have been applied.
b. Must use one of the following combinations of services:
1. Priority Mail Express with Adult Signature Restricted Delivery service (see DMM 503.8.0).
2. Priority Mail with Adult Signature Restricted Delivery service.
c. Be accompanied by a Domestic Return Receipt (PS Form 3811). The sender's address block must bear the eligibility number issued by the PCSC and be made returnable to the address as shown below:
PCSC, PACT MAILING OFFICE, USPS ELIGIBILITY NO. XX-00-0000, 90
d. Must bear the following marking: “PERMITTED CIGARETTE MAILING—DELIVER ONLY TO ADDRESSEE UPON AGE VERIFICATION” on the address side of the mailpiece.
e. Must bear the name and full mailing addresses of both the mailer and recipient, both of which must match exactly those listed on the authorized mailer's application on file with the Postal Service.
f. May not be addressed to an addressee located in a state that prohibits the delivery or shipment of cigarettes to individuals in the destination state.
g. May be sent only to an addressee who has not made any payment for the cigarettes, is being paid a fee for participation in consumer tests and has agreed to evaluate the cigarettes and furnish feedback to the manufacturer in connection with the consumer test.
h. May not exceed more than one package from any one manufacturer to an adult smoker during any 30-day period.
i. Must be entered at a retail and/or business mail acceptance location specified in the application and authorized by the PCSC.
Mailings under the consumer testing exception must be entered under the following conditions:
a. Covered products must be tendered via a face-to-face transaction with a Postal Service employee. Applicable mailings may not be tendered through any entry method prohibited under 473.1.e.
b. The mailer must present Postal Service acceptance personnel with a letter from the PCSC showing that the PCSC has authorized the mailer and acceptance location.
Mailings bearing the marking for consumer testing are eligible for delivery only to the named addressee under the following conditions:
a. The recipient signing for the article must be an adult of at least 21 years of age. The recipient's age must be verified by a postal employee before releasing or delivering the item to the recipient. The recipient must furnish proof of age via a driver's license, passport, or other government-issued photo identification that lists age or date of birth. The name on the identification must match the name of the addressee on the Priority Mail Express or Priority Mail label.
b. Once the recipient's age and identity are established, the recipient must sign for receipt of delivery and in the appropriate signature block of PS Form 3811.
Federal government agencies involved in the consumer testing of tobacco products solely for public health purposes may mail cigarettes (this does not apply to smokeless tobacco or ENDS) under the mailing standards of 473.5, except as follows:
a. The federal agency is not required to have a manufacturer's permit issued under 26 U.S.C. 5713.
b. The recipient is not required to be paid a fee for participation in consumer tests.
c. Upon written request, the Director, PCSC, may waive certain application requirements for mailings entered by the requesting federal agency. The Director, PCSC, may suspend, rescind, or modify any waiver at any time.
Eligibility to mail under one or more exceptions in 473.2 through .6 may be suspended or revoked by the Director, PCSC, in the event of failure to comply with any applicable law or regulation. A customer may appeal an adverse initial decision to the Director, Product Classification (see 214 for address). The mailer bears the burden of proof in establishing eligibility in any appeal of a suspension or revocation decision and of furnishing all supporting documentation when requested. Decisions by the Director, Product Classification, to revoke a customer`s eligibility under any exception may be appealed to the Judicial Officer under 39 CFR part 953.
The definitions in 471.1 through. 5 and the exclusion in 474.2 are pursuant to section 1 of the Jenkins Act (15 U.S.C. 375), which is administered by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Interpretative guidance regarding these provisions may be requested by contacting ATF at the following address, with a copy to the Pricing and Classification Service Center (PCSC) (see 213 for address): Bureau of Alcohol, Tobacco, Firearms and Explosives, 99 New York Avenue NE, c/o 90 K St. NE, Ste. 250, Washington, DC 20226.
A product is excluded from the definition of ENDS in 471.5 (15 U.S.C. 375(7)(C)) if:
a. It is approved by the Food and Drug Administration for sale as a tobacco cessation product or any other therapeutic purpose; and
b. Is marketed and sold solely for such purposes.
Any party who believes that a product to be sent through the mails qualifies for this exclusion should provide appropriate documentation to ATF at the address in 474.1, with a copy to the PCSC.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; notice of issuance of Letter of Authorization (LOA)
NMFS' Office of Protected Resources (OPR), upon request from NMFS' Northeast Fisheries Science Center (NEFSC), hereby issues regulations to govern the unintentional taking of marine mammals incidental to fisheries research conducted in multiple specified geographical regions over the course of 5 years. These regulations, which allow for the issuance of Letters of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking. Upon publication of this final rule, NMFS will issue an LOA to NEFSC for the effective period of the final rule.
Effective from October 21, 2021, through October 21, 2026.
A copy of NEFSC's application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427-8401.
These regulations establish a framework under the authority of the MMPA (16 U.S.C. 1361
We received an application from the NEFSC requesting 5-year regulations and authorization to take multiple species of marine mammals. Take would occur by Level B harassment incidental to the use of active acoustic devices, as well as by visual disturbance of pinnipeds in the Antarctic, and by Level A harassment, serious injury, or mortality incidental to the use of fisheries research gear. Please see “Background” below for definitions of harassment.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to 5 years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the Mitigation section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this rule containing 5-year regulations, and for any subsequent LOAs. As directed by this legal authority, this rule contains mitigation, monitoring, and reporting requirements.
The following provides a summary the major provisions within this rulemaking for the NEFSC fisheries research activities in the Northwest Atlantic Ocean. They include, but are not limited to:
• Training scientists and vessel crew in marine mammal detection and identification, rule compliance, and marine mammal handling.
• Monitoring of the sampling areas to detect the presence of marine mammals before gear deployment and while gear is in the water.
• Implementing standard tow durations to reduce the likelihood of incidental take of marine mammals.
• Implementing the mitigation strategy known as the “move-on rule,” which incorporates best professional judgment, when necessary during fisheries research.
• Removing gear from water if marine mammals are at-risk or interact with gear.
• Complying with applicable vessel speed restrictions and separation distances from marine mammals.
• Complying with applicable and relevant take reduction plans for marine mammals.
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
On September 2, 2020, NMFS received an application from NEFSC requesting promulgation of regulations and issuance of a 5-year LOA to take marine mammals incidental to fisheries and ecosystem research in the Atlantic Ocean. NEFSC subsequently submitted revised applications on October 29, 2020; November 19, 2020; and December 3, 2020. The December application was deemed adequate and complete on December 9, 2020. In accordance with the MMPA, we
These regulations are the second consecutive 5-year incidental take regulations issued in response to a petition from NEFSC. The initial regulations were finalized in 2016 and are effective through September 9, 2021 (81 FR 53061; August 11, 2016). A 5-year LOA was issued to NEFSC pursuant to those regulations (81 FR 64442, September 20, 2016); that LOA expires September 9, 2021. To date, NEFSC has complied with all the requirements (
The LOA issued under this final rule authorizes take of a small number of 10 species of marine mammals by mortality or serious injury incidental to gear interaction and 32 species or stocks by Level B harassment incidental to use of active acoustic devices during fisheries and ecosystem research.
The NEFSC is the research arm of NMFS in the Greater Atlantic Region (Maine to Virginia). The NEFSC plans, develops, and manages a multidisciplinary program of basic and applied research to generate the information necessary for the conservation and management of the region's living marine resources, including the region's marine and anadromous fish and invertebrate populations to ensure they remain at sustainable and healthy levels. The NEFSC collects a wide array of information necessary to evaluate the status of exploited fishery resources and the marine environment from fishery independent (
The NEFSC plans to administer, fund, or conduct 59 fisheries and ecosystem research survey programs over the 5-year period the regulations would be effective (Table 1). Of the 59 surveys, only 42 involve gear and equipment with the potential to take marine mammals. Gear types include towed trawl nets fished at various levels in the water column, dredges, gillnets, traps, longline and other hook and line gear. Surveys using any type of seine net (
NEFSC would conduct research year-round; however, certain surveys would occur seasonally (Table 1). The regulations and associated LOA would be valid for 5 years from date of issuance.
The NEFSC would conduct fisheries research activities off of the U.S. Atlantic coast within the Northeast U.S. Continental Shelf Large Marine Ecosystem (NE LME), an area defined as the 200 miles (322 km) off the shoreline and reaching from the U.S.-Canada border to Cape Hatteras (Figure 1). The NE LME is divided into four areas: the Gulf of Maine (GOM), Georges Bank (GB), Southern New England (SNE), and the Mid-Atlantic Bight (MAB). A small number of NEFSC surveys into the Southeast U.S. Continental Shelf LME (SE LME) and, rarely, north into the Scotian Shelf LME. Detailed descriptions of the NEFSC's research areas were provided in the notice of proposed rulemaking (86 FR 30080, June 4, 2021). Those descriptions remain accurate and sufficient, and we refer the reader to that notice rather than reprinting the information here.
A detailed description of NEFSC's planned activities was provided in the notice of proposed rulemaking (86 FR 30080, June 4, 2021) and is not repeated here except for the list of surveys provided in Table 1. No changes have been made to the specified activities described therein.
We published a notice of proposed rulemaking in the
There were no substantive changes from proposed rule to final rule; however, we have clarified reporting measures (to whom to report and when) and carried over two measures that were contained in the preamble of the proposed rule that were inadvertently omitted from the proposed regulation section. Overall, the final rule is substantively similar to the proposed rule.
Sections 3 and 4 of NEFSC's LOA application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Species and stock information is also provided in NMFS' 2015 proposed rule associated with the current LOA (80 FR 39542; July 9, 2015), NMFS's 2016 Final Programmatic Environmental Assessment (EA) (available
Table 3 lists all species or stocks for which take is expected and authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2020). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. Atlantic and Gulf of Mexico SARs (
We provided a detailed description on each marine mammal species in the notice of proposed rulemaking for this action (86 FR 30080, June 4, 2020). Since that time, no new information, other than an update to North Atlantic right whale abundance (which is included in Table 2) is available that impact our analysis and determinations; therefore, that information is not repeated here.
Detailed descriptions of the potential effects of the various elements of the NEFSC's specified activity on marine mammals and their habitat were provided in the proposed rule (86 FR 30080, June 4, 2021) as well as the 2016 Programmatic EA. Additionally, detailed descriptions of the potential effects of similar specified activities have also been provided in other
As stated previously, the use of certain research gears, including trawl nets, gillnets, longline gear, and fyke nets, has the potential to result in interaction with marine mammals. In the event of a marine mammal interaction with research gear, injury, serious injury, or mortality may result from entanglement or hooking. Exposure to sound through the use of active acoustic systems for research purposes may result in Level B harassment. However, as detailed in the previously referenced discussions, Level A harassment in the form of permanent threshold shift (PTS) is extremely unlikely to occur, and we consider such effects discountable. Finally, it is expected that hauled pinnipeds may be disturbed by approaching researchers such that Level B harassment could occur. Ship strike is not a reasonably anticipated outcome of NEFSC research activities, given the small amount of distance covered by research vessels, use of observers, and their relatively slow speed in comparison to commercial shipping traffic (
With specific reference to Level B harassment that may occur as a result of acoustic exposure, we note that the analytical methods from the original 2016 analysis are retained here. However, the state of science with regard to our understanding of the likely potential effects of the use of systems like those used by NEFSC has advanced in the preceding 5 years, as have readily available approaches to estimating the acoustic footprints of such sources, with the result that we view this analysis as highly conservative. Although more recent literature provides documentation of marine mammal responses to the use of these and similar acoustic systems (
The Estimated Take section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determinations section considers the potential effects of the specified activity, the Estimated Take section, and the Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.
This section provides an estimate of the number of incidental takes to be authorized through a LOA, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.
Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Take of marine mammals incidental to NEFSC research activities could occur as a result of (1) injury or mortality due to gear interaction (Level A harassment, serious injury, or mortality); (2) behavioral disturbance resulting from the use of active acoustic sources (Level B harassment only); or (3) behavioral disturbance of pinnipeds resulting from incidental approach of researchers and research vessels (Level B harassment only). Below we describe how the potential take is estimated.
To estimate the number of potential takes that could occur by M/SI and Level A through gear interaction, consideration of past interactions between gear (
The NEFSC has no recorded interactions with any gear other than midwater and bottom trawl, gillnet, and fyke net gears. As noted previously in Potential Effects of the Specified Activity on Marine Mammals, we anticipate future interactions with the same gear types.
In order to use these historical interaction records in a precautionary manner as the basis for the take estimation process, and because we have no specific information to indicate whether any given future interaction might result in M/SI versus Level A harassment, we conservatively assume that all interactions equate to mortality.
In order to estimate the potential number of incidents of M/SI take that could occur incidental to the NEFSC's use of midwater and bottom trawl, gillnet, fyke net, and longline gear in the Atlantic coast region over the 5-year period the rule would be effective (2021-2026), we first look at the six species described that have been taken historically and then evaluate the potential vulnerability of additional species to these gears.
Table 9 shows the average annual captures rate of these six species and the projected 5-year totals for this rule, for trawl, gillnet, and fyke net gear. Below we describe how these data were used to estimate future take for these and proxy species which also have the potential to be taken.
The NEFSC estimated takes for NEFSC gear that: (1) Had a prior take in the historical record, or (2) by analogy to commercial fishing gear. Further, given the rare events of M/SI in NEFSC fishery research, the NEFSC binned gear into categories (
Vulnerability of analogous species to different gear types is informed by the record of interactions by the analogous and reference species with commercial fisheries using gear types similar to those used in research. Furthermore, when determining the amount of take requested, we make a distinction between analogous species thought to have the same vulnerability for incidental take as the reference species and those analogous species that may have a similar vulnerability. In those cases thought to have the same vulnerability, the request is for the same number per year as the reference species. In those cases thought to have similar vulnerability, the request is less than the reference species. For example, the NEFSC believes the vulnerability of harbor seals to be taken in gillnets is the same as for gray seals (one per year) and thus requests one harbor seal per year (total of 5 over the authorization period). Alternatively, the potential for take of Atlantic white-sided dolphins in gillnets is expected to be similar to harbor porpoise (one per year), and the reduced request relative to this reference species is one Atlantic white sided dolphin over the entire 5-year authorization period.
The approach outlined here reflects: (1) Concern that some species with which we have not had historical interactions may interact with these gears, (2) acknowledgment of variation between sets, and (3) understanding that many marine mammals are not solitary so if a set results in take, the take could be greater than one animal. In these particular instances, the NEFSC estimates the take of these species to be equal to the maximum interactions per any given set of a reference species historically taken during 2004-2019.
In light of the low level of interaction and the mitigation measures to specifically reduce interactions with dolphins during COASTSPAN surveys
In 2015, one gray seal was killed during a trawl survey. Similar to other gear, the NEFSC believes that harbor seals have a similar vulnerability for incidental take as gray seals in this type of gear. To be conservative, for the period of this authorization, the NEFSC has requested one take by trawl for harbor seals each year over the 5-year authorization period. Thus, for harbor and gray seals, we propose to authorize a total taking by M/SI of 5 individuals over the 5-year timespan for trawl gear (Table 10).
Gillnet surveys typically occur nearshore in bays and estuaries. One gray seal and one harbor porpoise were caught during a Northeast Fisheries Observer Program training gillnet survey. The NEFSC believes that harbor seals have the same vulnerability to be taken in gillnets as gray seals and therefore estimates 5 takes of harbor seals in gillnets over the 5-year authorization period. For this species, we propose to authorize a total taking by M/SI of 5 individuals over the 5-year timespan (see Table 10).
Likewise, the NEFSC believes that Atlantic white-sided dolphins and short-beaked common dolphins have a similar vulnerability to be taken in gillnets as harbor porpoise and bottlenose dolphins (Waring
In 2008, a cooperating institution conducting the COASTSPAN gillnet survey in South Carolina caught and killed one bottlenose dolphin. Despite years of effort since that time, this was the only occurrence of incidental take in these surveys. The survey now imposes strict monitoring and mitigation measures (see sections below on Mitigation and Monitoring and Reporting). With regard to common bottlenose dolphins, M/SI takes are only requested for offshore and Northern migratory stocks (10 total over the 5-year period). Given the lack of recent take and the implementation of additional monitoring and mitigation measures, the NEFSC is not requesting, and NMFS is not proposing to authorize, take of bottlenose dolphins belonging to the Southern Coastal Migratory or Estuarine stocks as the NEFSC considers there to be a remote chance of incidentally taking a bottlenose dolphin from the estuarine stocks. However, in the future, if there is a bottlenose dolphin take from the estuarine stocks as confirmed by genetic sampling, the NEFSC will reconsider its take request in consultation and coordination with OPR and the Atlantic Bottlenose Dolphin Take Reduction Team.
In 2009, one gray seal was killed during a gillnet survey. Similar to other gear, the NEFSC believes that harbor seals have a similar vulnerability for incidental take as gray seals in this type of gear. To be conservative, for the period of this authorization, the NEFSC has requested one take by gillnet for harbor seals each year over the 5-year authorization period. Thus, for harbor and gray seals, we propose to authorize a total taking by M/SI of 5 individual over the 5-year timespan (Table 10).
The amount of take authorized, by M/SI, is identical to that authorized to the NEFSC for the 2016-2020 LOA except for take pertaining to the southern migratory coastal stock of bottlenose dolphins. The 2016-2021 LOA authorizes 8 takes from this stock. According to the SAR, during the warm water months of July-August, the stock is presumed to occupy coastal waters north of Cape Lookout, North Carolina, to Assateague, Virginia. North of Cape Hatteras during summer months, there
As described previously, we believe it unlikely that NEFSC use of active acoustic sources is realistically likely to cause Level B harassment of marine mammals. However, per NEFSC request, we conservatively assume that, at worst, Level B harassment may result from exposure to noise from these sources, and we carry forward the analytical approach developed in support of the 2015 rule. At that time, in order to quantify the potential for Level B harassment to occur, NMFS developed an analytical framework considering characteristics of the active acoustic systems, their expected patterns of use, and characteristics of the marine mammal species that may interact with them. The framework incorporated a number of deliberately precautionary, simplifying assumptions, and the resulting exposure estimates, which are presumed here to equate to take by Level B harassment (as defined by the MMPA), may be seen as an overestimate of the potential for such effects to occur as a result of the operation of these systems.
Regarding the potential for Level A harassment in the form of permanent threshold shift to occur, the very short duration sounds emitted by these sources reduces the likely level of accumulated energy an animal is exposed to. An individual would have to remain exceptionally close to a sound source for unrealistic lengths of time, suggesting the likelihood of injury occurring is exceedingly small. Potential Level A harassment is therefore not considered further in this analysis.
Authorized takes from the use of active acoustic scientific sonar sources (
Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment). As described in detail for NEFSC and other science centers in previously issued
The operating frequencies of active acoustic systems used by the NEFSC range from 30-333 kilohertz (kHz) (see Table 2). Examination of these sources considers operational patterns of use
The assessment paradigm for active acoustic sources used in NEFSC fisheries research is relatively straightforward and has a number of key simple and conservative assumptions. NMFS' current acoustic guidance requires in most cases that we assume Level B harassment occurs when a marine mammal receives an acoustic signal at or above a simple step-function threshold. Estimating the number of exposures at the specified received level requires several determinations, each of which is described sequentially below:
(1) A detailed characterization of the acoustic characteristics of the effective sound source or sources in operation;
(2) The operational areas exposed to levels at or above those associated with Level B harassment when these sources are in operation;
(3) A method for quantifying the resulting sound fields around these sources; and
(4) An estimate of the average density for marine mammal species in each area of operation.
Quantifying the spatial and temporal dimension of the sound exposure footprint (or “swath width”) of the active acoustic devices in operation on moving vessels and their relationship to the average density of marine mammals enables a quantitative estimate of the number of individuals for which sound levels exceed the relevant threshold for each area. The number of potential incidents of Level B harassment is ultimately estimated as the product of the volume of water ensonified at 160 dB rms or higher and the volumetric density of animals determined from simple assumptions about their vertical stratification in the water column. Specifically, reasonable assumptions based on what is known about diving behavior across different marine mammal species were made to segregate those that predominately remain in the upper 200 m of the water column versus those that regularly dive deeper during foraging and transit. Methods for estimating each of these calculations are described in greater detail in the following sections, along with the simplifying assumptions made, and followed by the take estimates.
Many of these sources can be operated in different modes and with different output parameters. In modeling their potential impact areas, those features among the sources identified in Table 2 (
From the sources identified in Table 2, the NEFSC identified six of the eight as having the largest potential impact zones during operations based on their relatively lower output frequency, higher output power, and operational pattern of use: EK60, ME70, DSM 300, ADCP Ocean Surveyor, Simrad EQ50, and Netmind (80 FR 39542, July 9, 2015). Further examination of these six sources considers operational patterns of use relative to each other, and which sources would have the largest potential impact zone when used simultaneously. NEFSC determined that the EK60, ME 70, and DSM 300 sources comprise the total effective exposures relative to line-kilometers surveyed acoustic disturbance takes are calculated for these three dominant sources. Of these dominant acoustic sources, only the EK 60 can use a frequency within the hearing range of baleen whales (18k Hz). Therefore, for NARW and all other baleen whales, Level B harassment is only expected for exposure to the EK60. The other two dominant sources are outside of their hearing range.
Following the determination of effective sound exposure area for transmissions considered in two dimensions (Table 11), the next step was to determine the effective volume of water ensonified at or above 160 dB rms for the entirety of each survey. For each of the three predominant sound sources, the volume of water ensonified is estimated as the athwartship cross-sectional area (in square kilometers) of sound at or above 160 dB rms multiplied by the total distance traveled by the ship. Where different sources operating simultaneously would be predominant in each different depth strata, the resulting cross-sectional area calculated took this into account. Specifically, for shallow-diving species this cross-sectional area was determined for whichever was predominant in the shallow stratum, whereas for deeper-diving species this area was calculated from the combined effects of the predominant source in the shallow stratum and the (sometimes different) source predominating in the deep stratum. This creates an effective total volume characterizing the area ensonified when each predominant source is operated and accounts for the fact that deeper-diving species may encounter a complex sound field in different portions of the water column. Volumetric densities are presented in Table 12.
As described in the 2015 proposed rule (80 FR 39542, July 9, 2015), marine mammals were categorized into two generalized depth strata: surface-associated (0-200 m) or deep-diving (0 to >200 m). These depth strata are based on reasonable assumptions of behavior (Reynolds III and Rommell 1999). Animals in the shallow-diving strata were assumed to spend a majority of their lives (>75 percent) at depths of 200 m or shallower. For shallow-diving species, the volumetric density is the area density divided by 0.2 km (
Species in the deeper diving strata were assumed to regularly dive deeper than 200 m and spend significant time at depth. For deeper diving species, the volumetric density is calculated as the area density divided by a nominal value of 0.5 km (
Estimates of potential incidents of Level B harassment (
1. EK60 ensonified volume; 0-200 m: 0.0142 km
2. Estimated exposures to sound ≥160 dB rms; humpback whale; EK60, LME region: (0.008 humpback whales/km
Similar calculations were conducted for the ME 70 and DSM300 for each animal in the LME region, with the exception of baleen whales, as these sound sources are outside of their hearing range. Totals in Tables 13 and 14 represent the total take of marine mammals, by species, across all relevant surveys and sources rounded up to the nearest whole number.
Estimated take due to physical disturbance could potentially occur in the Penobscot River Estuary as a result of the unintentional approach of NEFSC vessels to pinnipeds hauled out on ledges.
The NEFSC uses three gear types (fyke nets, rotary screw traps, and Mamou shrimp trawl) to monitor fish communities in the Penobscot River Estuary. The NEFSC conducts the annual surveys over specific sampling periods which could use any gear type: Mamou trawling is conducted year-round; fyke net surveys are conducted April-November; and rotary screw trap surveys from April-June.
We anticipate that trawl and fyke net surveys may disturb harbor seals and gray seals hauled out on tidal ledges through physical presence of researchers. The NEFSC conducts these surveys in upper Penobscot Bay above Fort Point Ledge where there is only one minor seal ledge (Odum Ledge) used by approximately 50 harbor seals (
There were no observations of gray seals in the 2001 survey, but recent anecdotal information suggests that a few gray seals may share the haulout site. These fisheries research activities do not entail intentional approaches to seals on ledges (
Only two research projects would involve the physical presence of researchers that may result in Level B incidental harassment of pinnipeds on haulouts. These surveys would occur in Penobscot Bay. Seals observed by NEFSC researchers on haulouts and in adjacent waters from 2017 through 2020 are presented in Table 16. The 2016 final rule (81 FR 53061, August 11, 2016) estimated that all hauled out seals could be disturbed by passing research skiffs. This was a conservative assumption given that only 20 seals were observed in the water during the actual 2017 Penobscot Bay surveys (NEFSC 2018b), and researchers have estimated that only about 10 percent of hauled out seals had been visibly disturbed in the past (NMFS 2016). Thus, for this rule, it is assumed that 10 percent of the animals hauled out could be flushed into the water and taken. The resulting requested take is estimated based on the number of days per year the activity might take place, times the number of seals potentially affected (10 percent of the number hauled). Table 17 provides the estimated annual and 5-year takes of harbor and gray seals due to behavioral harassment during surveys in the lower estuary of the Penobscot River.
Here we provide summary tables detailing the total incidental take authorized on an annual basis for the NEFSC in the Atlantic coast region, as well as other information relevant to the negligible impact analyses.
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned); and
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The NEFSC has invested significant time and effort in identifying technologies, practices, and equipment to minimize the impact of the proposed activities on marine mammal species and stocks and their habitat. The mitigation measures discussed here have been determined to be both effective and practicable and, in some cases, have already been implemented by the NEFSC. In addition, while not currently being investigated, any future
The NEFSC will coordinate with the local Northeast Regional Stranding Coordinator and the NMFS Stranding Coordinator for any unusual protected species behavior and any stranding, beached live/dead, or floating protected species that are encountered during field research activities. If a large whale is alive and entangled in fishing gear, the vessel will immediately call the U.S. Coast Guard at VHF Ch. 16 and/or the appropriate Marine Mammal Health and Stranding Response Network for instructions. All entanglements (live or dead) and vessel strikes must be reported immediately to the NOAA Fisheries Marine Mammal Stranding Hotline at 888-755-6622. In addition, any entanglement or vessel strike must be reported to the NMFS Protected Species Incidental Take database (PSIT) within 48 hours of the event happening (see Monitoring and Reporting).
When NEFSC research vessels are actively sampling, cruise speeds are less than 5 knots (kts), typically 2-4 kts, a speed at which the probability of collision and serious injury of large whales is de minimus. However, transit speed between active sampling stations will range from 10-12 kts, except in areas where vessel speeds are regulated to lower speeds.
On 9 December 2013, NMFS published a “Final rule to remove sunset provision of the Final Rule Implementing Vessel Speed Restrictions to Reduce the Threat of Ship Collisions with NARWs” (78 FR 73726). The 2013 final rule continued the vessel speed restrictions to reduce the threat of ship collisions with NARWs that were originally published in a final rule on October 10, 2008 (73 FR 60173). The rule requires that vessels 65 feet and greater in length travel at 10 knots or less near key port entrances and in certain areas of right whale aggregation along the U.S. eastern seaboard, known as “Seasonal Management Areas”. The spatial and temporal locations of SMAs from Maine to Florida can be found at:
Handling procedures are those taken to return a live animal to the sea or process a dead animal. The NEFSC will implement a number of handling protocols to minimize potential harm to marine mammals that are incidentally taken during the course of fisheries research activities. In general, protocols have already been prepared for use on commercial fishing vessels. Although commercial fisheries take larger quantities of marine mammals than fisheries research, the nature of such takes by entanglement or capture are similar. Therefore, the NEFSC would adopt commercial fishery disentanglement and release protocols (summarized below), which should increase post-release survival. Handling or disentangling marine mammals carries inherent safety risks, and using best professional judgment and ensuring human safety is paramount.
Captured or entangled live or injured marine mammals are released from research gear and returned to the water as soon as possible with no gear or as little gear remaining on the animal as possible. Animals are released without removing them from the water if possible, and data collection is conducted in such a manner as not to delay release of the animal(s) or endanger the crew. NEFSC is responsible for training NEFSC and partner affiliates on how to identify different species; handle and bring marine mammals aboard a vessel; assess the level of consciousness; remove fishing gear; and return marine mammals to water. Human safety is always the paramount concern.
For all research surveys using gear that has the potential to hook or entangle a marine mammal, the NEFSC must implement move-on rule mitigation protocol upon observation of any marine mammal other than dolphins and porpoises attracted to the vessel (see specific gear types below for marine mammal monitoring details). Specifically, if one or more marine mammals (other than dolphins and porpoises) are observed near the sampling area 15 minutes prior to setting gear and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, NEFSC must either remain onsite or move on to another sampling location. If remaining onsite, the set must be delayed until the animal(s) depart or appear to no longer be at risk of interacting with the vessel or gear. If gear deployment or retrieval is suspended due to protected species presence, resume only after there are no sightings for 15 minutes within 1nm of sampling location. At such time, the NEFSC may deploy gear. The NEFSC must use best professional judgment, in making decisions related to deploying gear.
The NEFSC deploys trawl nets in all layers of the water column. For all beam, mid-water, and bottom trawl, the NEFSC will initiate visual observation for protected species no less than 15 minutes prior to gear deployment. NEFSC will scan the surrounding waters with the naked eye and rangefinding binoculars and will continue visual monitoring while gear is deployed. During nighttime operations, NEFSC will observe with the naked eye and any available vessel lighting. If protected species are sighted within 15 minutes before setting gear, the OOD may determine whether to implement the “move-on” rule and transit to a different section of the sampling area. Trawl gear will not be deployed if protected species are sighted near the ship unless there is no risk of interaction as determined by the OOD or CS. If, after moving on, protected species are still visible from the vessel and appear at risk, the OOD may decide to move again, skip the station, or wait until the marine mammal(s) leave the area and/or are considered no longer at risk. If gear deployment or retrieval is suspended due to protected species presence, fishing may commence after there are no sightings for 15 minutes within 1nm of sampling location. If deploying bongo plankton or other small net prior to trawl gear, NEFSC will continue visual observations until trawl gear is ready to be deployed.
NEFSC trawl surveys will follow the standard tow durations of no more than 30 minutes at target depth for distances less than 3 nautical miles (nm). The exceptions to the 30-minute tow duration are the Atlantic Herring Acoustic Pelagic Trawl Survey and the Deepwater Biodiversity Survey where total time in the water (deployment, fishing, and haul-back) is 40 to 60 minutes and 180 minutes, respectively. Trawl tow distances will be not more than 3 nmi to reduce the likelihood of incidentally taking marine mammals. Typical tow distances are 1-2 nmi, depending on the survey and trawl speed. Bottom trawl tows will be made in either straight lines or following depth contours, whereas other tows targeting fish aggregations and deep-water biodiversity tows may be made along oceanographic or bathymetric features. In all cases, sharp course changes will be avoided in all surveys.
In many cases, trawl operations will be the first activity undertaken upon arrival at a new station, in order to reduce the opportunity to attract marine mammals to the vessel. However, in some cases it will be necessary to conduct plankton tows prior to deploying trawl gear in order to avoid trawling through extremely high densities of jellies and similar taxa that are numerous enough to severely damage trawl gear.
Once the trawl net is in the water, observations will continue around the vessel to maintain a lookout for the presence of marine mammals. If marine mammals are sighted before the gear is fully retrieved, resume only after there are no sightings for 15 minutes within 1 nmi of the sampling location. The OOD may also use the most appropriate response to avoid incidental take in consultation with the CS and other experienced crew as necessary. This judgment will be based on his/her past experience operating gears around marine mammals and NEFSC training sessions that will facilitate dissemination of CS. Captain expertise operating in these situations (
The acoustical cues generated during haulback may attract marine mammals. The NEFSC will continue monitoring for the presence of marine mammals during haulback. Care will be taken when emptying the trawl to avoid damage to any marine mammals that may be caught in the gear but are not visible upon retrieval. NEFSC will open the codend of the net close to the deck/sorting area to avoid damage to animals that may be caught in gear. The gear will be emptied as close to the deck/sorting area and as quickly as possible after retrieval in order to determine whether or not marine mammals, or any other protected species, are present.
The NEFSC will limit gillnet soak times to the least amount of time required to conduct sampling. Gillnet research will only be conducted during daylight hours. NEFSC will conduct marine mammal monitoring beginning 15 minutes prior to deploying the gear and continue until gear is back on deck. For the COASTSPAN gillnet surveys, NEFSC must actively monitor for potential bottlenose dolphin entanglements by hand-checking the gillnet every 30 minutes or if a disturbance in the net is observed (even if marine mammals are not observed).
NEFSC will pull gear immediately if disturbance in the nets is observed. All gillnets will be designed with minimal net slack and excess floating and trailing lines will be removed. NEFSC will set only new of fully repaired gill nets thereby eliminating holes, and modify nets to avoid large vertical gaps between float line and net as well as lead line and net when set. If a marine mammal is sighted during approach to a station or prior to deploying gear, nets would not be deployed until the animal has left the area, is on a path away from where the net would be set, or has not been re-sighted within 15 minutes. Alternatively, the research team may move the vessel to an area clear of marine mammals. If the vessel moves, the 15-minute observation period is repeated. Monitoring by all available crew would continue while the net is being deployed, during the soak, and during haulback.
If protected species are not sighted during the 15-minute observation period, the gear may be set. Waters surrounding the net and the net itself would be continuously monitored during the soak. If protected species are sighted during the soak and appear to be at risk of interaction with the gear, then the gear is pulled immediately. If fishing operations are halted, operations resume when animal(s) have not been sighted within 15 minutes or are determined to no longer be at risk. In other instances, the station is moved or cancelled. If any disturbance in the gear is observed in the gear, the net will be immediately checked or pulled.
The NEFSC will clean gear prior and during deployment. The catch will be emptied as quickly as possible. On Observer Training cruises, acoustic pingers and weak links are used on all gillnets consistent with the regulations and TRPs for commercial fisheries. All NEFOP protocols are followed as per current NEFOP Observer Manual. NEFSC must ensure that surveys deploy acoustic deterrent devices on gillnets in areas where required for commercial fisheries. NEFSC must ensure that the devices are operating properly before deploying the net.
Similar to other surveys, NEFSC will deploy longline gear as soon as practicable upon arrival on station. They will initiate visual observations for marine mammals no less than 15 minutes prior to deployment and continue until gear is back on deck. Observers will scan surrounding waters with the naked eye and binoculars (or monocular). Monitoring, albeit limited visibility, will occur during nighttime surveys using the naked eye and available vessel lighting. If marine mammals are sighted within 1nmi of the station within 15 minutes before setting gear, NEFSC will suspend gear deployment until the animals have moved on a path away from the station or implement the move-on rule. If gear deployment or retrieval is suspended due to presence of marine mammals, resume operations only after there are no sightings for at least 15 minutes within 1nmi of sampling location. In no case will longlines be deployed if animals are considered at-risk of interaction. When visibility allows, the OOD, CS, and crew standing watch will conduct set checks every 15 minutes to look for hooked, trapped, or entangled marine mammals. In addition, chumming is prohibited.
NEFSC will conduct monitoring of marine mammals 15 minutes prior to setting gear. If marine mammals are observed within 100 m of the station, NEFSC will delay setting the gear until the marine mammal(s) has moved past and on a path away from the station or implement the move-on rule. Similar to other gear measures, fyke nets will not be deployed in the animal(s) is deemed at-risk of interaction. If marine mammals are observed during sampling, gear will be pulled if the marine mammals is deemed at-risk of interacting with the gear. NEFSC will conduct monitoring and retrieval of gear every 12 to 24 hour soak period.
Fyke nets equal or greater to 2 m will be fitted with a marine mammal excluder device. The exclusion device consists of a grate the dimensions of which were based on exclusion devices on Penobscot Hydroelectric fishway facilities that are four to six inches and allow for passage of numerous target species including river herring, eels, striped bass, and adult salmon. The 1-m fyke net does not require an excluder device as the opening is 12 cm. These small openings will prevent marine mammals from entering the nets.
All pot/trap surveys will implement that same mitigation as described for longline surveys.
For all scallop and hydraulic clam dredges, the OOD, CS or others will scan for marine mammals for 15 minutes prior to deploying gear. If marine mammals are observed within 1 nm of the station, NEFSC will delay setting the gear until the marine mammal(s) has moved past and on a path away from the station or implement the move-on rule or the OOD or CS may implement the move-on rule. Dredge gear will not be deployed in the marine mammal is considered at-risk of interaction.
Sampling will be conducted upon arrival at the station and continue until gear is back on deck. Similar to trawl gear, care will be taken when emptying the nets to avoid damage to any marine mammals that may be caught in the gear but are not visible upon retrieval. NEFSC will empty the net close to the deck/sorting area to avoid damage to marine mammals that may be caught in gear. The gear will be emptied as quickly as possible after retrieval in order to determine whether or not marine mammals are present.
Based on our evaluation of these measures, NMFS has determined that the mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the specified geographic region. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
NEFSC must designate a compliance coordinator who must be responsible for ensuring compliance with all requirements of any LOA issued pursuant to these regulations and for preparing for any subsequent request(s) for incidental take authorization.
Since the 2016 final rule, NEFSC has made its training, operations, data collection, animal handling, and sampling protocols more systematic in order to improve its ability to understand how mitigation measures influence interaction rates and ensure its research operations are conducted in an informed manner and consistent with lessons learned from those with experience operating these gears in close proximity to marine mammals. In addition, NMFS has established a formal incidental take reporting system, the PSIT database, requiring that incidental takes of protected species be reported within 48 hours of the occurrence. The PSIT generates automated messages to agency leadership and other relevant staff and alerts them to the event and that updated information describing the circumstances of the event have been inputted into the database. It is in this spirit that we propose the monitoring requirements described below.
Marine mammal watches are a standard part of conducting fisheries research activities and are implemented as described previously in the Mitigation section. Dedicated marine mammal visual monitoring occurs as described (1) for some period prior to deployment of most research gear; (2) throughout deployment and active fishing of all research gears; (3) for some period prior to retrieval of longline gear; and (4) throughout retrieval of all research gear. This visual monitoring is performed by trained NEFSC personnel or other trained crew during the monitoring period. Observers record the species and estimated number of animals present and their behaviors. This may provide valuable information towards an understanding of whether certain species may be attracted to vessels or certain survey gears. Separately, personnel on watch (those navigating the vessel and other crew; these will typically not be NEFSC personnel) monitor for marine mammals at all times when the vessel is being operated. The primary focus for this type of watch is to avoid striking marine mammals and to generally avoid navigational hazards. These personnel on watch typically have other duties associated with navigation and other vessel operations and are not required to record or report to the scientific party data on marine mammal sightings, except when gear is being deployed, soaking, or retrieved or when marine mammals are observed in the path of the ship during transit.
NEFSC will also monitor disturbance of hauled out pinnipeds resulting from the presence of researchers, paying particular attention to the distance at which pinnipeds are disturbed. Disturbance will be recorded according to the three-point scale, representing increasing seal response to disturbance, as shown in Table 15.
NMFS considers the suite of monitoring and operational procedures required through this rulemaking to be necessary to avoid adverse interactions with protected species and still allow NEFSC to fulfill its scientific missions. However, some mitigation measures such as the move-on rule require judgments about the risk of gear interactions with protected species and the best procedures for minimizing that risk on a case-by-case basis. Vessel operators and Chief Scientists are charged with making those judgments at sea. They are all highly experienced professionals but there may be inconsistencies across the range of research surveys conducted and funded by NEFSC in how those judgments are made. In addition, some of the mitigation measures described above could also be considered “best practices” for safe seamanship and avoidance of hazards during fishing (
NEFSC will continue to use the process for its Chief Scientists and vessel operators to communicate with each other about their experiences with marine mammal interactions during research work with the goal of improving decision-making regarding avoidance of adverse interactions. As noted above, there are many situations where professional judgment is used to decide the best course of action for avoiding marine mammal interactions before and during the time research gear is in the water. The intent of this mitigation measure is to draw on the collective experience of people who have been making those decisions, provide a forum for the exchange of information about what went right and what went wrong, and try to determine
NEFSC would also continue utilizing the formalized marine mammal training program required for all NEFSC research projects and for all crew members that may be posted on monitoring duty or handle incidentally caught marine mammals. Training programs would be conducted on a regular basis and would include topics such as monitoring and sighting protocols, species identification, decision-making factors for avoiding take, procedures for handling and documenting marine mammals caught in research gear, and reporting requirements. The Observer Program currently provides protected species training (and other types of training) for NMFS-certified observers placed on board commercial fishing vessels. NEFSC Chief Scientists and appropriate members of NEFSC research crews will be trained using similar monitoring, data collection, and reporting protocols for marine mammal as is required by the Observer Program. All NEFSC research crew members that may be assigned to monitor for the presence of marine mammals during future surveys will be required to attend an initial training course and refresher courses annually or as necessary. The implementation of this training program would formalize and standardize the information provided to all research crew that might experience marine mammal interactions during research activities.
For all NEFSC research projects and vessels, written cruise instructions and protocols for avoiding adverse interactions with marine mammals will be reviewed and, if found insufficient, made fully consistent with the Observer Program training materials and any guidance on decision-making that arises out of the two training opportunities described above. In addition, informational placards and reporting procedures will be reviewed and updated as necessary for consistency and accuracy. All NEFSC research cruises already include pre-sail review of marine mammal protocols for affected crew but NEFSC will also review its briefing instructions for consistency and accuracy.
NEFSC will continue to coordinate with GARFO, NEFSC fishery scientists, NOAA research vessel personnel, and other NMFS staff as appropriate to review data collection, marine mammal interactions, and refine data collection and mitigation protocols, as required. NEFSC will also coordinate with NMFS' Office of Science and Technology to ensure training and guidance related to handling procedures and data collection is consistent with other fishery science centers, where appropriate.
NMFS has established a formal incidental take reporting system, the Protected Species Incidental Take (PSIT) database, requiring that incidental takes of protected species be reported within 48 hours of the occurrence. The PSIT generates automated messages to NMFS leadership and other relevant staff, alerting them to the event and to the fact that updated information describing the circumstances of the event has been inputted to the database. The PSIT and CS reports represent not only valuable real-time reporting and information dissemination tools but also serve as an archive of information that may be mined in the future to study why takes occur by species, gear, region, etc. The NEFSC is required to report all takes of protected species, including marine mammals, to this database within 48 hours of the occurrence and following standard protocol.
In the unanticipated event that NEFSC fisheries research activities clearly cause the take of a marine mammal in a prohibited manner, NEFSC personnel engaged in the research activity must immediately cease such activity until such time as an appropriate decision regarding activity continuation can be made by the NEFSC Director (or designee). The incident must be reported immediately to OPR and the NMFS GARFO. OPR will review the circumstances of the prohibited take and work with NEFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The immediate decision made by NEFSC regarding continuation of the specified activity is subject to OPR concurrence. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident including, but not limited to, monitoring prior to and occurring at time of the incident;
(iii) Environmental conditions (
(iv) Description of all marine mammal observations in the 24 hours preceding the incident;
(v) Species identification or description of the animal(s) involved;
(vi) Status of all sound source use in the 24 hours preceding the incident;
(vii) Water depth;
(viii) Fate of the animal(s) (
(ix) Photographs or video footage of the animal(s).
In the event that NEFSC discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that NEFSC discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to NEFSC fisheries research activities (
In the event of a ship strike of a marine mammal by any NEFSC or partner vessel involved in the activities covered by the authorization, NEFSC or partner must immediately report the information described above, as well as the following additional information:
(i) Vessel's speed during and leading up to the incident;
(ii) Vessel's course/heading and what operations were being conducted;
(iii) Status of all sound sources in use;
(iv) Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
(v) Estimated size and length of animal that was struck; and
(vi) Description of the behavior of the marine mammal immediately preceding and following the strike.
NEFSC will also collect and report all necessary data, to the extent practicable given the primacy of human safety and the well-being of captured or entangled marine mammals, to facilitate serious injury (SI) determinations for marine
We note here that the takes from potential gear interactions enumerated below could result in non-serious injury, but their worst potential outcome (mortality) is analyzed for the purposes of the negligible impact determination. We discuss here the connection, and differences, between the legal mechanisms for authorizing incidental take under section 101(a)(5) for activities such as NEFSC's research activities, and for authorizing incidental take from commercial fisheries. In 1988, Congress amended the MMPA's provisions for addressing incidental take of marine mammals in commercial fishing operations. Congress directed NMFS to develop and recommend a new long-term regime to govern such incidental taking (see MMC, 1994). The need to develop a system suited to the unique circumstances of commercial fishing operations led NMFS to suggest a new conceptual means and associated regulatory framework. That concept, PBR, and a system for developing plans containing regulatory and voluntary measures to reduce incidental take for fisheries that exceed PBR were incorporated as sections 117 and 118 in the 1994 amendments to the MMPA.
PBR is defined in section 3 of the MMPA (16 U.S.C. 1362(20)) as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (OSP) and, although not controlling, can be one measure considered among other factors when evaluating the effects of M/SI on a marine mammal species or stock during the section 101(a)(5)(A) process. OSP is defined in section 3 of the MMPA (16 U.S.C. 1362(9)) as the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element. Through section 2, an overarching goal of the statute is to ensure that each species or stock of marine mammal is maintained at or returned to its OSP.
PBR values are calculated by NMFS as the level of annual removal from a stock that will allow that stock to equilibrate within OSP at least 95 percent of the time, and is the product of factors relating to the minimum population estimate of the stock (N
Congress called for PBR to be applied within the management framework for commercial fishing incidental take under section 118 of the MMPA. As a result, PBR cannot be applied appropriately outside of the section 118 regulatory framework without consideration of how it applies within the section 118 framework, as well as how the other statutory management frameworks in the MMPA differ from the framework in section 118. PBR was not designed and is not used as an absolute threshold limiting commercial fisheries. Rather, it serves as a means to evaluate the relative impacts of those activities on marine mammal stocks. Even where commercial fishing is causing M/SI at levels that exceed PBR, the fishery is not suspended. When M/SI exceeds PBR in the commercial fishing context under section 118, NMFS may develop a take reduction plan, usually with the assistance of a take reduction team. The take reduction plan will include measures to reduce and/or minimize the taking of marine mammals by commercial fisheries to a level below the stock's PBR. That is, where the total annual human-caused M/SI exceeds PBR, NMFS is not required to halt fishing activities contributing to total M/SI but rather utilizes the take reduction process to further mitigate the effects of fishery activities via additional bycatch reduction measures. In other words, under section 118 of the MMPA, PBR does not serve as a strict cap on the operation of commercial fisheries that may incidentally take marine mammals.
Similarly, to the extent PBR may be relevant when considering the impacts of incidental take from activities other than commercial fisheries, using it as the sole reason to deny (or issue) incidental take authorization for those activities would be inconsistent with Congress's intent under section 101(a)(5), NMFS' long-standing regulatory definition of “negligible impact,” and the use of PBR under section 118. The standard for authorizing incidental take for activities other than commercial fisheries under section 101(a)(5) continues to be, among other things that are not related to PBR, whether the total taking will have a negligible impact on the species or stock. Nowhere does section 101(a)(5)(A) reference use of PBR to
Since the introduction of PBR in 1994, NMFS had used the concept almost entirely within the context of implementing sections 117 and 118 and other commercial fisheries management-related provisions of the MMPA. Prior to the Court's ruling in
The MMPA requires that PBR be estimated in SARs and that it be used in applications related to the management of take incidental to commercial fisheries (
When considering PBR during evaluation of effects of M/SI under section 101(a)(5)(A), we first calculate a metric for each species or stock that incorporates information regarding ongoing anthropogenic M/SI into the PBR value (
When ongoing total anthropogenic mortality from the applicant's specified activities does not exceed PBR and residual PBR is a positive number, as a simplifying analytical tool we first consider whether the specified activities could cause incidental M/SI that is less than 10 percent of residual PBR (the “insignificance threshold,” see below). If so, we consider M/SI from the specified activities to represent an insignificant incremental increase in ongoing anthropogenic M/SI for the marine mammal stock in question that alone (
Where the anticipated M/SI is near, at, or above residual PBR, consideration of other factors (positive or negative), including those outlined above, as well as mitigation is especially important to assessing whether the M/SI will have a negligible impact on the species or stock. PBR is a conservative metric and not sufficiently precise to serve as an absolute predictor of population effects upon which mortality caps would appropriately be based. For example, in some cases stock abundance (which is one of three key inputs into the PBR calculation) is underestimated because marine mammal survey data within the U.S. Exclusive Economic Zone (EEZ) are used to calculate the abundance even when the stock range extends well beyond the U.S. EEZ. An underestimate of abundance could result in an underestimate of PBR. Alternatively, we sometimes may not have complete M/SI data beyond the U.S. EEZ to compare to PBR, which could result in an overestimate of residual PBR. The accuracy and certainty around the data that feed any PBR calculation, such as the abundance estimates, must be carefully considered to evaluate whether the calculated PBR accurately reflects the circumstances of the particular stock. M/SI that exceeds PBR may still potentially be found to be negligible in light of other factors that offset concern, especially when robust mitigation and adaptive management provisions are included.
PBR was designed as a tool for evaluating mortality and is defined as the number of animals that can be removed while allowing that stock to reach or maintain its OSP. OSP is defined as a population that falls within a range from the population level that is the largest supportable within the ecosystem to the population level that results in maximum net productivity, and thus is an aspirational management goal of the overall statute with no specific timeframe by which it should be met. PBR is designed to ensure minimal deviation from this overarching goal, with the formula for PBR typically ensuring that growth towards OSP is not reduced by more than 10 percent (or equilibrates to OSP 95 percent of the time). As PBR is applied by NMFS, it provides that growth toward OSP is not reduced by more than 10 percent, which certainly allows a stock to reach or maintain its OSP in a conservative and precautionary manner—and we can therefore clearly conclude that if PBR were not exceeded, there would not be adverse effects on the affected species or stocks. Nonetheless, it is equally clear that in some cases the time to reach this aspirational OSP level could be slowed by more than 10 percent (
PBR is helpful in informing the analysis of the effects of mortality on a species or stock because it is important from a biological perspective to be able to consider how the total mortality in a given year may affect the population. However, section 101(a)(5)(A) of the MMPA indicates that NMFS shall authorize the requested incidental take from a specified activity if we find that the total of such taking [
Our evaluation of the M/SI for each of the species and stocks for which M/SI could occur follows. In addition, all mortality authorized for some of the same species or stocks over the next several years pursuant to our final rulemakings for the NMFS Southeast Fisheries Science Center (SEFSC) and U.S. Navy has been incorporated into the residual PBR. By considering the maximum potential incidental M/SI in relation to PBR and ongoing sources of anthropogenic mortality, we begin our evaluation of whether the potential incremental addition of M/SI through NEFSC research activities may affect the species' or stocks' annual rates of recruitment or survival. We also consider the interaction of those mortalities with incidental taking of that species or stock by harassment pursuant to the specified activity.
We first consider maximum potential incidental M/SI for each stock (Table 10) in consideration of NMFS's threshold for identifying insignificant M/SI take (10 percent of residual PBR (69 FR 43338; July 20, 2004)). By considering the maximum potential incidental M/SI in relation to PBR and ongoing sources of anthropogenic mortality, we begin our evaluation of whether the potential incremental addition of M/SI through NEFSC research activities may affect the species' or stock's annual rates of recruitment or survival. We also consider the interaction of those mortalities with incidental taking of that species or stock by harassment pursuant to the specified activity.
Here we provide a summary of the total incidental take authorization on an annual basis, as well as other information relevant to the negligible impact analysis. Table 19 shows information relevant to our negligible impact analysis concerning the annual amount of M/SI take that could occur for each stock when considering the authorized incidental take along with other sources of M/SI. As noted previously, although some gear interactions may result in Level A harassment or the release of an uninjured animal, for the purposes of the negligible impact analysis, we assume that all of these takes could potentially be in the form of M/SI.
We previously authorized take of marine mammals incidental to fisheries research operations conducted by the SEFSC (see 85 FR 27028, May 6, 2020) and U.S. Navy (84 FR 70712, December 23, 2019). This take would occur to some of the same stocks for which we may authorize take incidental to NEFSC fisheries research operations. Therefore, in order to evaluate the likely impact of the take by M/SI in this rule, we consider not only other ongoing sources of human-caused mortality but the potential mortality authorized for SEFSC fisheries and ecosystem research and U.S. Navy testing and training in the Atlantic Ocean. As used in this document, other ongoing sources of human-caused (anthropogenic) mortality refers to estimates of realized or actual annual mortality reported in the SARs and does not include authorized or unknown mortality. Below, we consider the total taking by M/SI for NEFSC activities and previously authorized for SEFSC and Navy activities together to produce a
All but one stocks that may potentially be taken by M/SI fall below the insignificance threshold (
As noted above, for a species or stock with incidental M/SI less than 10 percent of residual PBR, we consider M/SI from the specified activities to represent an insignificant incremental increase in ongoing anthropogenic M/SI that alone (
For these stocks with authorized M/SI below the insignificance threshold, there are no other known factors, information, or unusual circumstances that indicate anticipated M/SI below the insignificance threshold could have adverse effects on annual rates of recruitment or survival and they are not discussed further.
There is one stock for which we propose to authorize take where the annual rate of M/SI is above the 10 percent insignificance threshold: The western North Atlantic stock of gray seals. For this species, we explain below why we have determined the take is not expected or likely to adversely affect the species or stock through effects on annual rates of recruitment or survival.
At first glance, the annual rate of mortality of gray seals exceeds PBR in absence of any take authorized here or in other LOAs. However, the size of population reported in the SAR (and consequently the PBR value) is estimated separately for the portion of the population in Canada versus the U.S., and mainly reflects the size of the breeding population in each respective country. However, the annual estimated human-caused mortality and serious injury values in the SAR reflects both U.S. and Canada M/SI. For the period 2014-2018, the average annual estimated human-caused mortality and serious injury to gray seals in the U.S. and Canada was 4,729 (953 U.S./3,776 Canada) per year. Therefore, The U.S. portion of 2013-2017 average annual human-caused mortality and serious injury during 2014-2018 in U.S. waters does not exceed the portion of PBR in of the U.S. waters portion of the stocks but is still high (approximately 68 percent of PBR).
In U.S. waters, the number of pupping sites has increased from 1 in 1988 to 9 in 2019, and are located in Maine and Massachusetts (Wood et al. 2019). Mean rates of increase in the number of pups born at various times since 1988 at 4 of the more frequently surveyed pupping sites (Muskeget, Monomoy, Seal, and Green Islands) ranged from -0.2 percent (95 percent CI: −2.3-1.9) to 26.3 percent (95 percent CI: 21.6-31.4) (Wood et al. 2019). These high rates of increase provide further support that seals from other areas are continually supplementing the breeding population in U.S. waters. From 1988-2019, the estimated mean rate of increase in the number of pups born was 12.8 percent on Muskeget Island, 26.3 percent on Monomoy Island, 11.5 percent on Seal Island, and −0.2 percent on Green Island (Wood et al. 2019). These rates only reflect new recruits to the population and do not reflect changes in total population growth resulting from Canadian seals migrating to the region. Overall, the total population of gray seals in Canada was estimated to be increasing by 4.4 percent per year from 1960-2016 (Hammill et al. 2017). The status of the gray seal population relative to OSP in U.S. Atlantic EEZ waters is unknown, but the stock's abundance appears to be increasing in both Canadian and U.S. waters. For these reasons, the issuance of the M/SI take is not likely to affect annual rates of recruitment of survival.
As described in greater depth previously, the NEFSC's use of active acoustic sources has the likely potential to result in no greater than Level B (behavioral) harassment of marine mammals. Level A harassment is not an anticipated outcome of exposure, and we are not proposing to authorize it. Marine mammals are expected to have
We have produced what we believe to be conservative estimates of potential incidents of Level B harassment. The procedure for producing these estimates, described in detail in the notice of proposed rulemaking for the initial LOA (80 FR 39542, July 9, 2015) and summarized earlier in the Estimated Take section, represents NMFS' best effort towards balancing the need to quantify the potential for occurrence of Level B harassment due to production of underwater sound with a general lack of information related to the specific way that these acoustic signals, which are generally highly directional and transient, interact with the physical environment and to a meaningful understanding of marine mammal perception of these signals and occurrence in the areas where the NEFSC operates. The sources considered here have moderate to high output frequencies (10 to 200 kHz), generally short ping durations, and are typically focused (highly directional) to serve their intended purpose of mapping specific objects, depths, or environmental features. In addition, some of these sources can be operated in different output modes (
In particular, low-frequency hearing specialists (
Similarly, disturbance of pinnipeds by researchers are expected to be infrequent and cause only a temporary disturbance on the order of minutes. This level of periodic incidental harassment would have temporary effects and would not be expected to alter the continued use of the tidal ledges by seals. Anecdotal reports from previous monitoring show that the pinnipeds returned to the various sites and did not permanently abandon haulout sites after the NEFSC conducted their research activities. Monitoring results from other activities involving the disturbance of pinnipeds and relevant studies of pinniped populations that experience more regular vessel disturbance indicate that individually significant or population level impacts are unlikely to occur. When considering the individual animals likely affected by this disturbance, only a small fraction of the estimated population abundance of the affected stocks would be expected to experience the disturbance. Therefore, the NEFSC activity cannot be reasonably expected to, and is not reasonably likely to, adversely affect species or stocks through effects on annual rates of recruitment or survival.
In summary, as described in the
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
Please see Table 18 for information relating to this small numbers analysis. The total amount of take authorized is less than one percent for a majority of stocks, and no more than 12 percent for any given stock.
Based on the analysis contained herein of the proposed activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by the issuance of regulations to the NEFSC. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
GARFO issued a biological opinion to the NEFSC (concerning the conduct of the specified activities) and OPR (concerning issuance of the LOA) on October 8, 2021, which concluded that the proposed actions are not likely to adversely affect any listed marine mammal species or adversely modify critical habitat.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
In July 2016, the NEFSC published a Final Programmatic Environmental Assessment (PEA) for Fisheries Research Conducted and Funded by the NEFSC (NMFS 2016a) to consider the direct, indirect and cumulative effects to the human environment resulting from NEFSC's activities as well as OPR's issuance of the regulations and subsequent incidental take authorization. NMFS made the PEA available to the public for review and comment, in relation specifically to its suitability for assessment of the impacts of our action under the MMPA. OPR signed a Finding of No Significant Impact (FONSI) on August 3, 2016. These documents are available at
On September 18, 2020, NMFS announced the availability of a Draft Supplemental PEA for Fisheries Research Conducted and Funded by the Northeast Fisheries Science Center for review and comment (85 FR 58339). The purpose of the Draft SPEA is to evaluate potential direct, indirect, and cumulative effects of unforeseen changes in research that were not analyzed in the 2016 PEA, or new research activities along the U.S. East Coast. Where necessary, updates to certain information on species, stock status or other components of the affected environment that may result in different conclusions from the 2016 PEA are presented in this analysis. The supplemental PEA is available at
NMFS evaluated information in the PEA, SPEA, and NEFSC's application, as well as the 2016 FONSI, and determined that the initial FONSI is sufficient to support issuance of these regulations and subsequent 5-year Letter of Authorization. NMFS has documented this determination in a memorandum for the record.
On September 16, 2015, NMFS OPR Permits and Conservation Division, requested consultation under Section 304(d) of the NMSA on the issuance of regulations and a Letter of Authorization to the NEFSC from 2016- 2021. Similarly, the NEFSC initiated consultation pursuant to section 304(d) of the NMSA on August 4, 2015, to conduct fisheries research activities within Stellwagen Bank National Marine Sanctuary (NMS). On September 23, 2015, the Office of National Marine Sanctuaries (ONMS) responded with comments and recommendations which were incorporated into the NEFSC's PEA and NMFS final rule. The survey activities being considered under this final rule or their potential impacts on marine mammals are not significantly different from the activities considered in the 2015 consultation. Therefore, PR1 has determined that re-initiation of NMSA 304(d) consultation is not required for the issuance of the 2021-2026 LOA because the changes in the action and potential impacts do not meet the triggers for re-initiation of consultation.
The regulations governing the take of marine mammals incidental to NEFSC fisheries research survey operations would contain an adaptive management component. The inclusion of an adaptive management component will be both valuable and necessary within the context of 5-year regulations for activities that have been associated with marine mammal mortality.
The reporting requirements associated with this rule are designed to provide OPR with monitoring data from the previous year to allow consideration of whether any changes are appropriate. OPR and the NEFSC will meet annually to discuss the monitoring reports and current science and whether mitigation or monitoring modifications are appropriate. The use of adaptive management allows OPR to consider new information from different sources to determine (with input from the NEFSC regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to
The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal research and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs.
The Office of Management and Budget has determined that this rule is not significant for purposes of Executive Order 12866.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. NMFS is the sole entity that would be responsible for adhering to the requirements in these regulations, and NMFS is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared.
This rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act (PRA) because the applicant is a Federal agency. Notwithstanding any other provision of law, no person is required to respond to nor must a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number. These requirements have been approved by OMB under control number 0648-0151 and include applications for regulations, subsequent LOAs, and reports.
NMFS has determined that there is good cause under the Administrative Procedure Act (5 U.S.C 553(d)(3)) to waive the 30-day delay in the effective date of this final rule. No individual or entity other than the NEFSC is affected by the provisions of these regulations. The NEFSC requested that this final rule take effect on September 10, 2021, to accommodate the NEFSC's LOA expiring on September 9, 2021, so as to not cause a disruption in research activities. The waiver of the 30-day delay of the effective date of the final rule will ensure that the MMPA final rule and LOA are in place as soon as possible to minimize the lapse in MMPA take coverage. Any delay in finalizing the rule would result in either: (1) A suspension of planned research, which would disrupt the provision of vital data necessary for effective management of fisheries; or (2) the NEFSC's procedural non-compliance with the MMPA (should the NEFSC conduct research without an LOA), thereby resulting in the potential for unauthorized takes of marine mammals. Moreover, the NEFSC is ready to implement the regulations immediately and requested the waiver. For these reasons, NMFS finds good cause to waive the 30-day delay in the effective date. In addition, the rule authorizes incidental take of marine mammals that would otherwise be prohibited under the statute. Therefore, by granting an exception to the NEFSC, the rule will relieve restrictions under the MMPA, which provides a separate basis for waiving the 30-day effective date for the rule.
Endangered and threatened species, Fish, Marine mammals, Reporting and recordkeeping requirements, Wildlife.
For the reasons stated in the preamble, 50 CFR part 219 is amended as follows:
16 U.S.C. 1361
(a) This subpart applies only to the National Marine Fisheries Service's (NMFS) Northeast Fisheries Science Center and those persons it authorizes or funds to conduct activities in the area outlined in paragraph (b) of this section during research survey program operations.
(b) The incidental taking of marine mammals by Northeast Fisheries Science Center may be authorized in a Letter of Authorization (LOA) only if it occurs within the Northeast and Southeast Large Marine Ecosystem.
Regulations in this subpart are effective from October 21, 2021, through October 21, 2026.
Under LOAs issued pursuant to §§ 216.106 of this chapter and 219.37, the Holder of the LOA (hereinafter “NEFSC”) may incidentally, but not intentionally, take marine mammals within the area described in § 219.31(b) by Level B harassment associated with use of active acoustic systems and physical or visual disturbance of hauled out pinnipeds and by Level A harassment, serious injury, or mortality associated with use of trawl, dredge, bottom and pelagic longline, gillnet, pot and trap, and fyke net gears, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
Except for takings contemplated in § 219.33 and authorized by a LOA issued under §§ 216.106 of this chapter and 219.37, it shall be unlawful for any person to do any of the following in connection with the activities described in § 219.31:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 219.37;
(b) Take any marine mammal not specified in such LOA;
(c) Take any marine mammal specified in such LOA in any manner other than as specified;
(d) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOA if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
When conducting the activities identified in § 219.31(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 219.37 must be implemented. These mitigation measures must include but are not limited to:
(a)
(2) NEFSC must coordinate and conduct briefings at the outset of each survey and as necessary between the ship's crew (Commanding Officer/master or designee(s), contracted vessel owners, as appropriate) and scientific party or in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures;
(3) NEFSC must coordinate as necessary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA platforms to ensure that requirements, procedures, and decision-making processes are understood and properly implemented;
(4) When deploying any type of sampling gear at sea, NEFSC must at all times monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment;
(5) All vessels must comply with applicable and relevant take reduction plans, including any required use of acoustic deterrent devices;
(6) If a NEFSC vessel 65 ft (19.8 m) or longer is traveling within a North Atlantic right whale Seasonal Management Area, the vessel shall not exceed 10 knots in speed. When practicable, all NEFSC vessels traveling within a Dynamic Management Area or acoustically-triggered Slow Zone should not exceed 10 knots in speed;
(7) All NEFSC vessels shall maintain a separation distance of 500 m and 100 m from a North Atlantic right whale and other large whales, respectively;
(8) NEFSC must implement handling and/or disentanglement protocols as specified in the guidance provided to NEFSC survey personnel; and
(9) In the case of a bottlenose dolphin entanglement resulting in mortality and stock origin is unknown, the NEFSC must request and arrange for expedited genetic sampling for stock determination and photograph the dorsal fin and submit the image to the NMFS Regional Marine Mammal Stranding Coordinator for identification/matching to bottlenose dolphins in the Bottlenose Dolphin Photo-identification Catalog.
(b)
(2) NEFSC must initiate marine mammal watches (visual observation) 15 minutes prior to sampling within 1 nm of the site. Marine mammal watches must be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation will be conducted using the naked eye and available vessel lighting;
(3) NEFSC must implement the following “move-on rule.” If a marine mammal is sighted within 1 nautical mile (nm) of the planned location in the 15 minutes before gear deployment, NEFSC may move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear based on best professional judgement. If, after moving on, marine mammals are still visible from the vessel, NEFSC may decide to move again or to skip the station. NMFS may use best professional judgement in making this decision;
(4) NEFSC must maintain visual monitoring effort during the entire period of time that trawl gear is in the water (
(5) If trawling operations have been suspended because of the presence of marine mammals, NEFSC may resume only after there are no sightings for 15 minutes within 1nm of sampling location;
(6) If deploying bongo plankton or other small net prior to trawl gear, NEFSC will continue visual observations until trawl gear is ready to be deployed;
(7) NEFSC must implement standard survey protocols to minimize potential for marine mammal interactions. These protocols include, but are not limited to:
(i) Standard tow durations of no more than 30 minutes at target depth for distances less than 3 nautical miles (nm). The exceptions to the 30-minute tow duration are the Atlantic Herring Acoustic Pelagic Trawl Survey and the Deepwater Biodiversity Survey where total time in the water (deployment, fishing, and haul-back) is 40 to 60 minutes and 180 minutes, respectively;
(ii) Trawl tow distances of no more than 3 nm;
(iii) Bottom trawl tows will be made in either straight lines or following depth contours, whereas other tows targeting fish aggregations and deep-water biodiversity tows may be made along oceanographic or bathymetric features;
(iv) Sharp course changes will be avoided in all surveys;
(v) Open the codend of the net close to the deck/sorting area to avoid damage to animals that may be caught in gear; and
(vi) Gear will be emptied as close to the deck/sorting area and as quickly as possible after retrieval; and
(vii) Trawl nets must be cleaned prior to deployment.
(c)
(2) NEFSC must initiate marine mammal watches (visual observation) prior to sampling. Marine mammal watches must be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation must be conducted using the naked eye and available vessel lighting;
(3) NEFSC must implement the following “move-on rule.” If marine mammals are sighted within 1 nautical mile (nm) of the planned location in the 15 minutes before gear deployment, the NEFSC may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear, based on best professional judgement. If, after moving on, marine mammals are still visible
(4) NEFSC must maintain visual monitoring effort during the entire period of time that dredge gear is in the water (
(5) If dredging operations have been suspended because of the presence of marine mammals, NEFSC may resume operations when practicable only when the animals are believed to have departed the area or after 15 minutes of no sightings. NEFSC may use best professional judgment in making this determination; and
(6) NEFSC must carefully empty the dredge gear as close to the deck/sorting area and quickly as possible upon retrieval to determine if marine mammals are present in the gear.
(d)
(2) NEFSC must initiate marine mammal watches (visual observation) no less than fifteen minutes prior to both deployment and retrieval of the longline gear. Marine mammal watches must be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation must be conducted using the naked eye and available vessel lighting;
(3) NEFSC must implement the following “move-on rule.” If marine mammals are sighted within 1 nautical mile (nmi) of the planned location in the 15 minutes before gear deployment, the NEFSC may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear, based on best professional judgement. If, after moving on, marine mammals are still visible from the vessel, NEFSC may decide to move again or to skip the station;
(4) For the Apex Predators Bottom Longline Coastal Shark Survey, if one or more marine mammals are observed within 1 nautical mile (nm) of the planned location in the 15 minutes before gear deployment, NEFSC must transit to a different section of the sampling area to maintain a minimum set distance of 1 nmi from the observed marine mammals. If, after moving on, marine mammals remain within 1 nmi, NEFSC may decide to move again or to skip the station. NEFSC may use best professional judgment in making this decision but may not elect to conduct pelagic longline survey activity when animals remain within the 1-nmi zone;
(5) NEFSC must maintain visual monitoring effort during the entire period of gear deployment or retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, NEFSC must take the most appropriate action to avoid marine mammal interaction. NEFSC may use best professional judgment in making this decision;
(6) If deployment or retrieval operations have been suspended because of the presence of marine mammals, NEFSC may resume such operations after there are no sightings of marine mammals for at least 15 minutes within 1nm area of sampling location. In no case will longlines be deployed if animals are considered at-risk of interaction; and
(7) NEFSC must implement standard survey protocols, including maximum soak durations and a prohibition on chumming.
(e)
(2) The NEFSC must initiate marine mammal watches (visual observation) prior to both deployment and retrieval of the gillnet gear. When the vessel is on station during the soak, marine mammal watches must be conducted during the soak by scanning the surrounding waters with the naked eye and binoculars (or monocular);
(3) The NEFSC must implement the following “move-on rule.” If marine mammals are sighted within 1 nmi of the planned location in the 15 minutes before gear deployment, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains, may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear based on best professional judgement. If, after moving on, marine mammals are still visible from the vessel, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains may decide to move again or to skip the station;
(4) If marine mammals are sighted near the vessel during the soak and are determined to be at risk of interacting with the gear, then the NEFSC must carefully retrieve the gear as quickly as possible. The NEFSC may use best professional judgment in making this decision;
(5) The NEFSC must implement standard survey protocols, including continuously monitoring the gillnet gear during soak time and removing debris with each pass as the net is reset into the water to minimize bycatch;
(6) The NEFSC must ensure that surveys deploy acoustic pingers on gillnets in areas where required for commercial fisheries. NEFSC must ensure that the devices are operating properly before deploying the net;
(7) NEFSC must maintain visual monitoring effort during the entire period of gear deployment or retrieval. If marine mammals are sighted during the soak and are deemed at risk of interaction, the gillnet must be pulled. If fishing operations are halted, operations resume when animal(s) have not been sighted within 15 minutes or are determined to no longer be at risk. In other instances, the station is moved or cancelled;
(8) NEFSC must ensure that cooperating institutions, contracted vessels, or commercially-hired captains conducting gillnet surveys adhere to monitoring and mitigation requirements and must include required protocols in all survey instructions, contracts, and agreements;
(9) For the COASTSPAN gillnet surveys, the NEFSC will actively monitor for potential bottlenose dolphin entanglements by hand-checking the gillnet every 30 minutes or if a disturbance in the net is observed. In the unexpected case of a bottlenose dolphin entanglement resulting in mortality, NEFSC must request and arrange for expedited genetic sampling for stock determination. NEFSC must also photograph the dorsal fin and submit the image to the NMFS Southeast Stranding Coordinator for identification/matching to bottlenose dolphins in the Mid-Atlantic Bottlenose Dolphin Photo-Identification Catalog;
(10) NEFSC must pull gear immediately if disturbance in the nets is observed.
(11) All gillnets will be designed with minimal net slack and excess floating and trailing lines will be removed.
(12) NEFSC will set only new or fully repaired gill nets, and modify nets to avoid large vertical gaps between float line and net as well as lead line and net when set,
(13) On Observer Training cruises, acoustic pingers and weak links may be used on all gillnets consistent with the regulations and TRPs for commercial fisheries. NEFSC must ensure that surveys deploy acoustic deterrent devices on gillnets in areas where required for commercial fisheries. NEFSC must ensure that the devices are
(f)
(2) The NEFSC must initiate marine mammal watches (visual observation) no less than 15 minutes prior to both deployment and retrieval of the pot and trap gear. Marine mammal watches must be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation must be conducted using the naked eye and available vessel lighting;
(3) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must implement the following “move-on” rule. If marine mammals are sighted within 1 nmi of the planned location in the 15 minutes before gear deployment, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains, as appropriate, may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear, based on best professional judgement. If, after moving on, marine mammals are still visible from the vessel, the NEFSC may decide to move again or to skip the station;
(4) If marine mammals are sighted near the vessel during the soak and are determined to be at risk of interacting with the gear, then the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must carefully retrieve the gear as quickly as possible. The NEFSC may use best professional judgment in making this decision; and
(5) The NEFSC must ensure that surveys deploy gear fulfilling all pot/trap universal commercial gear configurations such as weak link requirements and marking requirements as specified by applicable take reduction plans as required for commercial pot/trap fisheries.
(g)
(2) NEFSC must visually survey the area prior to both deployment and retrieval of the fyke net gear. NEFSC must conduct monitoring and retrieval of the gear every 12- to 24-hour soak period;
(3) If marine mammals are in close proximity (approximately 328 feet [100 meters]) of the set location, NEFSC must determine if the net should be removed from the water and the set location should be moved using best professional judgment;
(4) If marine mammals are observed to interact with the gear during the setting, NEFSC must remove the gear from the water and implement best handling practices; and
(5) NEFSC must install and use a marine mammal excluder device at all times when using fyke nets equal or greater to 2 m.
(h)
(2) NEFSC must visually survey the area prior to both setting and retrieval of the rotary screw trap gear. If marine mammals are observed in the sampling area, NEFSC must suspend or delay the sampling. NEFSC may use best professional judgment in making this decision;
(3) NEFSC must tend to the trap on a daily basis to monitor for marine mammal interactions with the gear; and
(4) If the rotary screw trap captures a marine mammal, NEFSC must remove gear and implement best handling practices.
(a)
(b)
(2) Marine mammal watches must be conducted by watch-standers (those navigating the vessel and/or other crew) at all times when the vessel is being operated;
(3) NEFSC must monitor any potential disturbance of pinnipeds on ledges, paying particular attention to the distance at which different species of pinniped are disturbed. Disturbance must be recorded according to a three-point scale of response to disturbance; and
(4) The NEFSC must continue to conduct a local census of pinniped haulout areas prior to conducting any fisheries research in the Penobscot River estuary. The NEFSC's census reports must include an accounting of disturbance based on the three-point scale of response severity metrics.
(c)
(2) NEFSC must also dedicate a portion of training to discussion of best professional judgment, including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful; and
(3) NEFSC must coordinate with NMFS' Southeast Fisheries Science Center (SEFSC) regarding surveys conducted in the southern portion of the Atlantic coast region, such that training and guidance related to handling procedures and data collection is consistent.
(d)
(2) When practicable, for any marine mammal interaction involving the release of a live animal, NEFSC must collect necessary data to facilitate a serious injury determination;
(3) NEFSC must provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring/or not bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction; and
(4) NEFSC must record such data on standardized forms, which will be subject to approval by OPR. The data must be collected at a sufficient level of detail (
(e)
(ii) The NEFSC must submit annual reports. The period of reporting will be one year beginning at the date of issuance of the LOA. NEFSC must submit an annual summary report to OPR not later than ninety days following the end of the reporting period. These reports must contain, at minimum, the following:
(A) Annual line-kilometers surveyed during which the EK60, ME70, DSM300 (or equivalent sources) were predominant;
(B) Summary information regarding use of the following: All trawl gear, all longline gear, all gillnet gear, all dredge gear, fyke net gear, and rotary screw trap gear (including number of sets, hook hours, tows, and tending frequency specific to each gear type);
(C) Accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why;
(D) Summary information from the pinniped haulout censuses in the and summary information related to any disturbance of pinnipeds, including event-specific total counts of animals present, counts of reactions according to a three-point scale of response severity, and distance of closest approach;
(E) A written evaluation of the effectiveness of NEFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any;
(F) Final outcome of serious injury determinations for all incidents of marine mammal interactions where the animal(s) were released alive; and
(G) A summary of all relevant training provided by the NEFSC and any coordination with the NMFS Southeast Fishery Science Center, the Greater Atlantic Regional Fisheries Office, and the Southeast Regional Office.
(iii) Reporting of North Atlantic right whales and injured or dead marine mammals:
(A) In the event that the NEFSC observes a North Atlantic right whale during a survey, they must report the sighting as soon as possible to 866-755-6622 if the sighting occurs in the Northeast region (VA to ME) or to 877-WHALE-HELP if the sighting occurs in the Southeast region (FL to NC). The NEFSC must also report the sighting to the U.S. Coast Guard via Channel 16.
(B) In the event that the NEFSC discovers an injured or dead marine mammal, NEFSC must report the incident to OPR (
(C) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a prohibited manner, NEFSC must immediately cease such activity until such time as an appropriate decision regarding activity continuation can be made by the NEFSC Director (or designee). The incident must be immediately reported to the contacts in 6(c)(ii). OPR will review the circumstances of the prohibited take and work with NEFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
(3) In the event of a ship strike of a marine mammal by any vessel involved in the activities covered by the authorization, NEFSC must report the incident to OPR and to the appropriate Regional Stranding Network as soon as feasible. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Vessel's speed during and leading up to the incident;
(iv) Vessel's course/heading and what operations were being conducted (if applicable);
(v) Status of all sound sources in use;
(vi) Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
(vii) Environmental conditions (
(viii) Estimated size and length of animal that was struck;
(ix) Description of the behavior of the marine mammal immediately preceding and following the strike;
(x) If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;
(xi) Estimated fate of the animal (
(xii) To the extent practicable, photographs or video footage of the animal(s).
(a) To incidentally take marine mammals pursuant to these regulations, NEFSC must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, NEFSC may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, NEFSC must apply for and obtain a modification of the LOA as described in § 219.38.
(e) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA must be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA must be published in the
(a) A LOA issued under §§ 216.106 of this chapter and 219.37 for the activity identified in § 219.31(a) must be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the
(2) OPR determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the
(c) An LOA issued under §§ 216.106 of this chapter and 219.37 for the activity identified in § 219.31(a) may be modified by OPR under the following circumstances:
(1) OPR may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with NEFSC regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from NEFSC's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of proposed LOA in the
(2) If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 219.32(b), a LOA may be modified without prior notice or opportunity for public comment. Notification would be published in the
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the narrow-headed gartersnake (
This rule is effective November 22, 2021.
This final rule is available on the internet at
The coordinates or plot points or both from which the maps are generated are included in the decision file for this critical habitat designation and are available at
Jeff Humphrey, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, Fish and Wildlife Office, 9828 North 31st Ave. #C3, Phoenix, AZ 85051-2517; telephone 602-242-0210. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.
The critical habitat we are designating in this rule, consisting of eight units comprising approximately 447 stream miles (719 kilometers) within a maximum 326-foot (100-meter) lateral extent of the active stream channel, in an area of 23,784 acres (9,625 hectares) for the narrow-headed gartersnake, constitutes our current best assessment of the areas that meet the definition of critical habitat for the species.
Please refer to the final listing rule (79 FR 38678; July 8, 2014), the original proposed critical habitat rule (78 FR 41550; July 10, 2013), and the revised proposed critical habitat rule (85 FR 23608; April 28, 2020) for the narrow-headed gartersnake for a detailed description of previous Federal actions concerning this species. Those rules included the northern Mexican gartersnake (
In the revised proposed critical habitat rule (85 FR 23608; April 28, 2020), we stated that a draft analysis document under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
No changes were made to our economic analysis after considering public comment on the draft document. The final updated economic analysis document (IEc 2021, entire) is available at
We reviewed the comments related to critical habitat for the narrow-headed gartersnake (see Summary of Comments and Recommendations, below), completed our analysis of areas
As a result, our final designation of critical habitat reflects the following changes from the April 28, 2020, revised proposed rule (85 FR 23608):
(1) We revised unit areas based on comments we received regarding areas that did or did not contain the PBFs essential to the conservation of the species. These changes resulted in a net increase of 5,081 acres (ac) (2,056 hectares (ha)) of critical habitat. Critical habitat units were extended laterally to capture areas needed for brumation, a period of dormancy during the winter. All areas added to this final critical habitat designation were proposed as critical habitat for the narrow-headed gartersnake in the 2013 original proposed critical habitat rule (78 FR 41550; July 10, 2013) (see
(2) We modified PBFs 1(B), 1(C), 1(D), and 3 for the narrow-headed gartersnake as identified below under Physical or Biological Features Essential to the Conservation of the Species.
(3) We excluded approximately 508 ac (206 ha) from portions of units for the narrow-headed gartersnake, as identified below in Table 2 (Areas excluded from critical habitat designation by critical habitat unit for the narrow-headed gartersnake).
(4) We corrected several errors in unit descriptions.
We requested written comments from the public on the original proposed critical habitat rule (78 FR 41550; July 10, 2013) and on the revised proposed critical habitat rule (85 FR 23608; April 28, 2020) for the narrow-headed gartersnake. The comment period for the original proposed critical habitat rule opened on July 10 and closed on September 9, 2013; the comment period for the revised proposed critical habitat rule opened on April 28 and closed on June 29, 2020.
For the original proposed critical habitat rule (78 FR 41550; July 10, 2013), we contacted appropriate Federal, State, and Tribal governments; local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed critical habitat designation. For the revised proposed critical habitat rule (85 FR 23608; April 28, 2020), we again contacted all interested parties, including appropriate Federal and State agencies, Tribal governments, scientific experts and organizations, and other interested parties, and invited them to submit written comments on the revised proposal. In the April 28, 2020, revised proposed rule, we stated that any comments we received in response to the July 10, 2013, proposed rule need not be resubmitted as they would be fully considered in this final rule. Newspaper notices inviting general public comments were published throughout the range of the proposed critical habitat designation for both the original and revised proposed rules.
During the comment period on the original proposed critical habitat rule (78 FR 41550; July 10, 2013), we received approximately 30 written comment letters on the proposed critical habitat designation. During the comment period on the revised proposed critical habitat rule (85 FR 23608; April 28, 2020), we received an additional 40 comment letters on the revised proposed critical habitat designation or the draft economic analysis (IEc 2019, entire). We also received one additional request for exclusion of an area that was not identified in the revised proposed rule. We reviewed each exclusion request and whether the requester provided information or a reasoned rationale to initiate an analysis or support an exclusion (see Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR 7226; February 11, 2016)). All substantive information provided during both comment periods has either been incorporated directly into this final determination or is addressed in our responses below.
We also note that we no longer use primary constituent elements (PCEs) to identify areas as critical habitat. We eliminated PCEs due to redundancy with the physical or biological features (PBFs). This change in terminology is in accordance with a February 11, 2016 (81 FR 7414), rule to implement changes to the regulations for designating critical habitat. In the revised proposed critical habitat rule (85 FR 23608; April 28, 2020), we used the comments we had received and additional information to revise: (1) The PBFs that are essential to the conservation of the species and which may require special management considerations or protection under the Act; (2) the criteria used to define the areas occupied at the time of listing for the species; and (3) the criteria used to identify critical habitat boundaries. We then applied the revised PBFs and identification criteria for the species, along with additional information we received regarding where these PBFs exist on the landscape to determine the geographic extent of each critical habitat unit. We received comments on the original proposed critical habitat rule (78 FR 41550; July 10, 2013) that referred to PCEs, and our responses to those comments below correlate with the respective PBFs from the revised proposed critical habitat rule (85 FR 23608; April 28, 2020).
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review actions under the Act, we solicited expert opinion on the original proposed critical habitat rule (78 FR 41550; July 10, 2013) from eight knowledgeable individuals with scientific expertise that includes familiarity with the narrow-headed gartersnake and its habitat, biological needs, and threats. We received responses from three of the peer reviewers. In 2020, during the public comment period for the revised proposed critical habitat rule (85 FR 23608; April 28, 2020), we received comments from one of the peer reviewers regarding our revised proposed rule. We address these peer reviewer comments in this final rule as appropriate.
This rule designates critical habitat only for the narrow-headed gartersnake; therefore, in this rule, we limit our discussion of the peer reviewer and public comments we received to those concerning the narrow-headed gartersnake. We reviewed all the comments we received from the peer reviewers for substantive issues and new information regarding the narrow-headed gartersnake and its habitat use and needs. The peer reviewers provided additional information, clarifications, and suggestions to improve the designation. Our revised proposed critical habitat rule (85 FR 23608; April 28, 2020) was developed in part to address some of the concerns and information raised by the peer reviewers in 2013. The additional details and information we received from or that were raised by the peer reviewers have been incorporated into this final rule, as appropriate. Substantive comments we
Subsequently, we received two comments on the revised proposed critical habitat rule (85 FR 23608; April 28, 2020) that a distance of 89 ft (27 m) did not capture known brumation sites on canyon walls used by narrow-headed gartersnakes in Oak Creek Canyon in Arizona (see
In the revised proposed critical habitat rule (85 FR 23608; April 28, 2020) and this rule, we also define perennial, intermittent, and ephemeral as related to stream flow included in PBF 1 for the narrow-headed gartersnake and clarify the spectrum of stream flow regimes that provide stream habitat for the species based on scientifically accepted stream flow definitions (Levick
Under section 7 of the Act, Federal agencies are required to consult with the Service to ensure that the actions they carry out, fund, or authorize are not
While the Glenwood State Fish Hatchery along Whitewater Creek meets our definition of critical habitat, consideration of possible exclusions from critical habitat are in our discretion and generally follow our Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR 7226; February 11, 2016). With respect to NMDGF's request to exclude the Glenwood State Fish Hatchery along Whitewater Creek, we are not excluding the area from this final rule. See Consideration of Impacts under Section 4(b)(2) of the Act,
In accordance with our requirements to coordinate with Tribes on a government-to-government basis, we solicited information from the following 17 Tribes regarding the designation of critical habitat for the narrow-headed gartersnake: Chemehuevi Indian Tribe, Cocopah Indian Tribe, Colorado River
Additionally, criteria used to determine if designation of critical habitat for the narrow-headed gartersnake is prudent pursuant to our regulations (50 CFR 424.12(a)(1)) may differ from criteria used to designate critical habitat for other listed species. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) has been met and because there are no other circumstances we have identified for which this designation of critical habitat would not be prudent, we have determined that the designation of critical habitat is prudent for the species.
In development of the revised proposed critical habitat rule (85 FR 23608; April 28, 2020), we used the best scientific and commercial information available. In that revised proposed rule, we reassessed occupancy at the time of listing by reviewing all records for the narrow-headed gartersnake that we used in our original proposed critical habitat rule (78 FR 41550; July 10, 2013) in conjunction with expected survivorship of the species. We also used subsequent surveys in areas that had no detection of the species, and reviewed changes in threats that may have prevented occupancy at the time of listing. We determined that the best available information reflecting occupancy at the time of listing supports a more recent date of records since 1998, which includes areas within the United States (see Criteria Used To Identify Critical Habitat, below). This and other information represent the best scientific and commercial data available and led us to determine areas of occupancy at the time of listing. Our review of the best scientific and commercial data available supports the conclusion that the designation of critical habitat is prudent and determinable for the narrow-headed gartersnake.
As discussed in the final listing rule (79 FR 38678; July 8, 2014), landscape-scale wildfires have impacted the species and its habitats. We understand that wildfires can cause sedimentation that can reduce water quality and prey availability for the narrow-headed gartersnake, and we included areas in critical habitat that had records of the species from 1998 to 2019, but that may need special management to maintain PBFs 1 and 3 as a result of recent or future wildfires.
We explain that streams that have perennial or spatially intermittent flow can provide stream habitat for the species (Levick
Based on our analyses in the listing rule (79 FR 38678; July 8, 2014), we conclude that there has been a significant decline in the species over the past 50 years. This decline appeared to accelerate during the two decades immediately before listing occurred. From this observation, we conclude that many areas that were occupied by the species in surveys during the 1980s are likely no longer occupied because those populations have likely disappeared. To determine where loss of populations was most likely, we reviewed survey efforts after 1989 that did not detect narrow-headed gartersnakes in some of the areas included in the original proposed critical habitat rule (78 FR 41550; July 10, 2013). All surveys conducted since the 1980s that were considered included at least the same amount or more search effort than those surveys that detected the species in the 1980s. Since 1998, researchers have detected narrow-headed gartersnakes in many areas where they were found in the 1980s, and this includes some areas where they had not been found prior to the 2014 final listing rule (see Criteria Used To Identify Critical Habitat, below). An increase in a species' detection information often occurs as a result of a species being listed as an endangered or threatened species, due to increased survey effort spurred by consultation requirements under section 7, as well as recovery actions or State coordination efforts under section 6, of the Act. Additional occupancy information is also sometimes obtained as a result of academic research on a species. Because the best available information supports a conclusion that these areas were occupied at the time of listing, we have included these areas in critical habitat (see Criteria Used To Identify Critical Habitat, below).
In the revised proposed critical habitat rule (85 FR 23608; April 28, 2020) and this final rule, critical habitat includes occupied streams or stream reaches within the historical range with survey records of the narrow-headed gartersnake dated from 1998 to 2019 that have retained the necessary PBFs that will allow for the maintenance and expansion of existing populations. We placed outer boundaries on the portion of a stream that is considered occupied. We identified the most upstream and downstream records of the narrow-headed gartersnake along each continuous stream reach determined by presence of PBFs, and we extended the stream reach to include a dispersal distance of 2.2 mi (3.6 km). After identifying the stream reaches that meet the above parameters, we then connected those reaches with intervening areas that have the PBFs. We consider these intervening areas occupied because the species occurs upstream and downstream and multiple PBFs are present that allow the species to move through these stream reaches.
Areas subject to stocking of predatory sportfish are not occupied by the narrow-headed gartersnake. We have not identified any unoccupied areas that meet the definition of critical habitat. Please see our response to
As required by section 4(b) of the Act, we use the best scientific and commercial data available in determining areas within the geographical area occupied at the time of listing that contain the features essential to the conservation of the species and which may require special management considerations or protection, and areas outside of the geographical area occupied at the time of listing that are essential for the conservation of the species. However, based on the best scientific data available we have not identified any unoccupied areas that are essential for the conservation of the species. While we know the conservation of the species will depend on increasing the number and distribution of populations of the narrow-headed gartersnake, not all of its historical range will be essential to the conservation of the species, and we are unable to delineate any specific unoccupied areas that are essential at this time. A number of areas within these watersheds continue to contain some or could develop many of the PBFs upon which the species depends, although the best available scientific data indicate all these areas are currently unoccupied. Some areas in these watersheds with the potential to support the PBFs are likely important to the overall conservation strategy for the narrow-headed gartersnake. Any specific areas essential to the species' conservation within these watersheds are not currently identifiable due to our limited understanding regarding the ideal configuration for the development of future habitat to support the narrow-headed gartersnake's persistence, and the ideal size, number, and configuration of these habitats. Although there may be a future need to expand the area occupied by the species to reach recovery, these areas have not been identified in recovery planning for the narrow-headed gartersnake. Therefore, we cannot identify unoccupied areas that are currently essential to the conservation of the species that should be designated as critical habitat.
As required by section 4(b) of the Act, we use the best scientific and commercial data available in determining areas within the geographical area occupied at the time of listing that contain the features essential to the conservation of a species and which may require special management considerations or protection, and areas outside of the geographical area occupied at the time of listing that are essential for the conservation of the species. However, based on the best scientific data available we have not identified any unoccupied areas that that are essential for the conservation of the species. While we know the conservation of the species will depend on increasing the number and distribution of populations of the narrow-headed gartersnake, not all of the species' historical range will be essential to the conservation of the species, and we are unable to delineate any specific unoccupied areas that are essential at this time. A number of areas within these watersheds continue to contain some, or could develop many, of the PBFs upon which the species depends, although the best available scientific data indicate all these areas are currently unoccupied. Some areas in these watersheds with the potential to support the PBFs are likely important to the overall conservation strategy for the narrow-headed gartersnake. Any specific areas essential to the species' conservation within these watersheds are not currently identifiable due to our limited understanding regarding the ideal configuration for the development of future habitat to support the narrow-headed gartersnake's persistence, and the ideal size, number, and configuration of these habitats. Although there may be a future need to expand the area occupied by the species to reach recovery, these areas have not been identified in recovery planning for the narrow-headed gartersnake. Therefore, we cannot identify unoccupied areas that are currently essential to the conservation of the species that should be designated as critical habitat.
Under section 7 of the Act, Federal agencies are required to consult with the Service to ensure that the actions they carry out, fund, or authorize are not likely to jeopardize the continued existence of the species, or destroy or adversely modify critical habitat. For a jeopardy or “take” analysis, we analyze effects to a species if the species is present in the action area during the time of the action. For an adverse modification analysis, we analyze effects to critical habitat if critical habitat for a species is present in the action area. Therefore, defining where a species is occupied at the time of listing for critical habitat designation is not synonymous with a determination that an area is currently occupied for purposes of a jeopardy analysis under section 7 of the Act or a “take” analysis under section 10 of the Act. Those determinations depend on the best available information at the time of the analysis, and the likely effects and likelihood of take depend on the action under consideration.
However, we recognize the potential for landowners' perceptions of the Act to influence land use decisions, including decisions to participate in Federal programs such as those managed by NRCS. Several factors can influence the magnitude of perception-related effects, including the community's experience with the Act and understanding of the degree to which future section 7 consultations could delay or affect land use activities. Information is not available to predict the impact of the designation of critical habitat on landowners' decisions to pursue cost-share projects with NRCS in the future. However, incremental effects due to the designation of critical habitat for the narrow-headed gartersnake are likely to be minimized because the species is already listed.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary (
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features that occur in specific occupied areas, we focus on the specific features that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. The implementing regulations at 50 CFR 424.12(b)(2) further delineate unoccupied critical habitat by setting out three specific parameters: (1) When designating critical habitat, the Secretary will first evaluate areas occupied by the species; (2) the Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species; and (3) for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of the species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of those planning efforts calls for a different outcome.
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation of the species, we may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.
We derive the specific physical or biological features essential to the conservation of the narrow-headed gartersnake from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the proposed and final listing rules published in the
We define the stream flow regimes that provide stream habitat for the narrow-headed gartersnake based on stream flow definitions in Levick
Narrow-headed gartersnakes are primarily found in rocky stretches of canyon-bound headwater streams that have perennial flow or limited spatially intermittent flow that is primarily perennial. Narrow-headed gartersnakes have been documented in pools and shallow portions of an intermittent flow reach of the Blue River with wet areas separated by dry segments of 0.6 to 1.2 miles (1 to 2 km) in length (Cotten
Narrow-headed gartersnakes depend on terrestrial and aquatic habitat for all of their life-history functions, so it is important that hydrologic processes are present to maintain both the terrestrial and aquatic components of habitat for the species. Hydrologic processes are the flow regime and physical hydrologic and geomorphic connection that create and maintain a stream channel and continuously redefine the boundary between aquatic and terrestrial habitat used by the narrow-headed gartersnake.
We have determined that the following physical or biological features are essential to the conservation of the narrow-headed gartersnake:
1. Perennial streams or spatially intermittent streams that provide both aquatic and terrestrial habitat that allows for immigration, emigration, and maintenance of population connectivity of narrow-headed gartersnakes and contain:
(A) Pools, riffles, and cobble and boulder substrate, with a low amount of fine sediment and substrate embeddedness;
(B) Organic and natural inorganic structural features (
(C) Water quality that meets or exceeds applicable State surface water quality standards; and
(D) Terrestrial habitat up to 328 feet (100 meters) from the active stream channel (water's edge) that includes flood debris, rock piles, and rock walls containing cracks and crevices, small mammal burrows, downed woody debris, and streamside vegetation (
2. Hydrologic processes that maintain aquatic and riparian habitat through:
(A) A natural flow regime that allows for periodic flooding, or if flows are modified or regulated, a flow regime that allows for the movement of water, sediment, nutrients, and debris through the stream network, as well as maintenance of native fish populations; and
(B) Physical hydrologic and geomorphic connection between the active stream channel and its adjacent terrestrial areas.
3. A combination of native fishes, and soft-rayed, nonnative fish species such that prey availability occurs across seasons and years.
4. An absence of nonnative aquatic predators, such as fish species of the families Centrarchidae and Ictaluridae, American bullfrogs (
5. Elevations of 2,300 to 8,200 feet (700 to 2,500 meters).
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection.
A detailed discussion of activities influencing the narrow-headed gartersnake and its habitat can be found in the final listing rule (79 FR 38678; July 8, 2014). All areas of critical habitat will require some level of management to address the current and future threats to the narrow-headed gartersnake and to maintain or restore the PBFs. Special management within critical habitat will be needed to ensure these areas provide adequate water quantity, quality, and permanence or near permanence; cover (particularly in the presence of nonnative aquatic predators); an adequate prey base; and absence of or low numbers of nonnative aquatic
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are not designating any areas as critical habitat outside the geographical area occupied by the species at the time of listing because we have not identified any unoccupied areas that meet the definition of critical habitat. Sites within the Gila River, San Francisco River, Salt River, and Verde River watersheds were previously occupied by the narrow-headed gartersnake. While we know the conservation of the species will depend on increasing the number and distribution of populations of the narrow-headed gartersnake, not all of its historical range will be essential to the conservation of the species, and we are unable to delineate any specific unoccupied areas that are essential at this time. A number of areas within these watersheds continue to contain some or could develop many of the physical and biological features upon which the species depends, although the best available scientific data indicate all these areas are currently unoccupied. Some areas in these watersheds with the potential to support the physical and biological features are likely important to the overall conservation strategy for the narrow-headed gartersnake. Any specific areas essential to the species' conservation within these watersheds are not currently identifiable due to our limited understanding regarding the ideal configuration for the development of future habitat to support the narrow-headed gartersnake's persistence, the ideal size, number, and configuration of these habitats. Finally, the specific areas needed for conservation will depend in part on landowner willingness to restore and maintain the species' habitat in these areas. Therefore, although there may be a future need to expand the area occupied by the narrow-headed gartersnake species to reach recovery, there are no unoccupied areas that are currently essential to the species conservation and that should be designated as critical habitat.
To identify areas for critical habitat for the narrow-headed gartersnake, we used a variety of sources for species data including fish species survey reports, museum records, heritage data from State wildlife agencies, peer-reviewed literature, agency reports, and incidental sight records accompanied by photo vouchers and other supporting documentation verified by interviews with species experts. Holycross
We determined that a stream or stream reach was occupied at the time of listing for narrow-headed gartersnake if it is within the historical range of the species, contains all PBFs for the species (although the PBFs concerning prey availability and presence of nonnative predators are often in degraded condition), and has a last known record of occupancy between 1998 and 2019. We determined occupancy at the time of listing for the narrow-headed gartersnake by reviewing all records for the species in conjunction with expected survivorship of the species, subsequent surveys in areas that had no detection of the species, and changes in threats over time that may have prevented occupancy at time of listing. Understanding longevity of a species can inform how long we can reasonably expect a species is still extant in an area, regardless of detection probability. Narrow-headed gartersnakes may live up to 10 years or longer in the wild (Rosen and Schwalbe 1988, p. 38). An individual narrow-headed gartersnake captured in the wild as an adult was kept in captivity for 11 years and is estimated to be 16 years old (Ryan 2020, pers. comm.). Based on this information, we estimate maximum longevity for the narrow-headed gartersnake is 15 years, so that it is reasonable to conclude that a gartersnake detected between 1998 and 2019 represents a population that could still be present at the time of listing in 2014, depending on the extent of threats in the area. Although it is possible that gartersnakes are still extant in areas where they were detected prior to 1998, we have determined that the best available information reflecting occupancy at the time of listing supports a more recent date of records since 1998.
Based on our analyses in the final listing rule (79 FR 38678; July 8, 2014), we conclude that there has been a significant decline in the species over the past 50 years. This decline appeared to accelerate during the two decades immediately before listing occurred.
As explained in the final listing rule (79 FR 38678, July 8, 2014, pp. 38688-38702), aquatic vertebrate survey efforts throughout the range of the narrow-headed gartersnake indicate that native prey species of narrow-headed gartersnakes have decreased or are absent, while nonnative predators of gartersnakes and their prey, including bullfrogs, crayfish, and spiny-rayed fish, continue to increase in many of the areas where narrow-headed gartersnakes were present in the 1980s (Emmons and Nowak 2012, pp. 11-14; Gibson
We included detections of the narrow-headed gartersnake that occurred after the species was listed because these areas were likely occupied at the time of listing in 2014. As stated earlier, the species is cryptic in nature and may not be detected without intensive surveys. Because populations of this species are generally small, isolated, and in decline, it is not likely that the species has colonized new areas since 2014; these areas were most likely occupied at the time of listing, but either had not been surveyed or the species was present but not detected during surveys. However, we did not include streams where narrow-headed gartersnakes were released for recovery purposes after the species was listed that had not been historically occupied by the species.
Stream reaches that lack PBFs include areas where water flow became completely ephemeral along an otherwise perennial or spatially intermittent stream, hydrologic processes needed to maintain streams could not be recovered, nonnative aquatic predators outnumbered native prey species, or streams were outside the elevation range. In addition, reaches with multiple negative surveys without a subsequent positive survey or reaches that have no records of the narrow-headed gartersnake species are not included. We do include stream reaches that lack survey data for the species, if they have positive observation records of the species dated 1998 or later both upstream and downstream of the stream reach and have all of the PBFs.
We also reviewed the best available information we have on home range size and potential dispersal distance for the narrow-headed gartersnake species to inform upstream and downstream boundaries of each unit and subunit of critical habitat. The maximum longitudinal distance measured across home range areas of a male narrow-headed gartersnake tracked for 51 days over 3 years during the dry and wet seasons was approximately 1,312 ft (400 m) (Jennings and Christman 2012, p. 10). The maximum longitudinal distance measured across home ranges areas ranged from 82 to 656 ft (25 to 200 m) for eight other narrow-headed gartersnakes tracked at least 6 days over 1 to 2 years (Jennings and Christman 2012, pp. 9-10). These longitudinal home range distances were all determined from adult gartersnakes and did not inform how juvenile gartersnakes are dispersing along a stream. Juvenile dispersal is important because snakes of different age classes behave differently, and juvenile gartersnakes may move farther along a stream as they search for and establish suitable home ranges than do adults with established home ranges. Because we have no information on how juvenile narrow-headed gartersnakes disperse, we used information from a long-term dispersal study on neonate, juvenile, and adult age classes of the Oregon gartersnake (
In this final rule, we modified the lateral extent of critical habitat to include areas of brumation habitat since we inadvertently left out brumation habitat as part of PBF 1(D) in the revised proposed rule (85 FR 23608; April 28, 2020). We now incorporate the best information available on brumation habitat and other terrestrial habitat use of the narrow-headed gartersnake to inform lateral boundaries of each unit and subunit of critical habitat. There are three reported narrow-headed gartersnakes using brumation sites on steep slopes in Oak Creek Canyon, Arizona (Nowak 2006, pp. 19-20). Horizontal distances from stream centerline to these brumation sites ranged between 276 and 328 ft (84 and 101 m) (Nowak 2015, pers. comm.). There were also at least five other individual narrow-headed gartersnakes overwintering at brumation sites that were not on steep slopes at 66 to 98 ft (20 to 30 m) from the water's edge (Nowak 2006, pp. 20-21). The distance from the stream appeared to be dependent on the adjacent terrestrial topography so that gartersnakes were found farther from the stream in steeper terrain. The Nowak (2006) study is the only study that has documented brumation sites of telemetered narrow-headed gartersnakes.
Although we have no information on brumation sites in New Mexico, we have information on how narrow-headed gartersnakes moved in three different stream channels during the active season. A telemetry study of
Sites much farther from water where gartersnakes were found in both Arizona and New Mexico during the active season may provide lower predation risk, protection from flooding, and warmer temperatures that are advantageous during gestation, after a large meal, or when snakes are more vulnerable prior to molting (Jennings and Christman 2012, p. 21). Brumation sites documented in Arizona by Nowak (2006) are likely higher in steeper terrain because of the thermal gradient in canyon habitats during winter: Temperatures increase dramatically in areas hit by sun at the tops of these canyons that get some amount of direct sunlight in winter. Higher brumation sites may also prevent the gartersnakes from being flooded out of these sites during high stream flow events.
Therefore, in this final rule, we delineate lateral extent of critical habitat boundaries of a stream to fall within 328 ft (100 m) of the active channel of a stream. Lateral extent varies based on topography as explained above. The active channel effectively defines a river or stream as a feature on the landscape (Mersel and Lichvar 2014, pp. 11-12). The active channel is established and maintained by flows that occur with some regularity (several times per year to several times per decade), but not by very rare and extremely high flood events. The outer limits of the active channel can generally be defined by three primary indicators that together form a discernable mark on the landscape: A topographic break in slope, change in vegetation characteristics, and change in sediment characteristics (Mersel and Lichvar 2014, pp. 13-14). The active channel is often a fairly obvious and easy feature to identify in the field, allowing for rapid and consistent identification (Mersel and Lichvar 2014, p. 14). Further, the active channel can be consistently recognized by the public. Any area that was added in this final rule as a result of increasing the lateral extent of critical habitat units was included in the 2013 original proposed critical habitat rule for the narrow-headed gartersnake (78 FR 41550; July 10, 2013).
The maps define the critical habitat designation, as modified by any accompanying regulatory text, presented at the end of this document under Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document.
In summary, for areas within the geographic area occupied by the species at the time of listing, we delineated critical habitat unit boundaries using the following criteria:
1. We mapped records of the narrow-headed gartersnake from 1998 to 2019. We then examined these areas to determine if narrow-headed gartersnakes could still occur in them, as described below.
2. We identified the streams in which narrow-headed gartersnakes were found since 1998 (used flowline layer in the U.S. Geological Survey (USGS) National Hydrography Dataset to represent stream centerlines).
3. We identified and removed upstream and downstream ends of streams that were below 2,300 ft or above 8,200 ft in elevation using USGS National Elevation Dataset.
4. We identified perennial, intermittent, and ephemeral reaches of streams. We removed upstream end reaches of streams that are ephemeral or intermittent based on FCode attribute of the flowline layer in the USGS National Hydrography Dataset or information from peer review and public comments.
5. We identified native and nonnative prey species along each stream using geospatial datasets, literature, peer review, and public comments. We removed stream reaches that did not have prey species.
6. We identified and removed stream reaches with an abundance of nonnative aquatic predators including fish, crayfish, or bullfrogs. (We used a combination of factors to determine nonnative presence and impact to the species. This evaluation included records from 1980 by looking at subsequent negative survey data for narrow-headed gartersnakes along with how the nonnative aquatic predator community had changed since those gartersnakes were found, in addition to the habitat condition and complexity. Most of the areas surveyed in the 1980s that had been re-surveyed with negative results for gartersnakes had significant changes to the nonnative aquatic predator community, which also decreased prey availability for the gartersnakes.) These areas were removed in our revised proposed critical habitat rule (85 FR 23608; April 28, 2020).
7. We identified and removed stream reaches where stocking or management of nonnative fish species of the families Centrarchidae and Ictaluridae is a priority and is conducted on a regular basis.
8. We identified and included those stream reaches on private land without public access that lack survey data but that have positive narrow-headed gartersnake survey records from 1998 forward both upstream and downstream of the private land and have stream reaches with PBFs 1 and 2.
9. We used a surrogate species to determine potential neonate dispersal along a stream, which is 2.2 mi (3.6 km). We then identified the most upstream and downstream records of narrow-headed gartersnake along each continuous stream reach determined by criteria 1 through 8, above, and extended the reach to include this dispersal distance.
10. After identifying the stream reaches that met the above parameters, we then connected those reaches between that have the PBFs. We consider these areas between survey records occupied because the species occurs upstream and downstream and multiple PBFs are present that allow the species to move through these stream reaches.
11. We identified the range of the maximum distance that narrow-headed gartersnakes have been documented from the water's edge in streams, which is 98 to 328 ft (30 to 100 m), to capture the upper limit of terrestrial habitat needed by the species for brumation, thermoregulation, and protection from predators. We used the USGS National Hydrography Dataset, wetland layer of the Service's National Wetlands Inventory dataset, and aerial photography in Google Earth Pro to identify the water's edge in streams (active channel).
12. We removed terrestrial areas between 30 m and 100 m lateral extent of the active channel that do not contain
When determining critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack PBFs necessary for the narrow-headed gartersnake. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action will affect the PBFs in the adjacent critical habitat. However, constructed fish barriers in streams within the designated critical habitat are part of the designation and are needed to manage the exclusion of nonnative species. Accordingly, section 7 consultation applies to actions involving such fish barriers.
We are designating as critical habitat lands that we have determined were occupied at the time of listing in 2014 and that contain one or more of the PBFs that are essential to support life-history processes of the species. As described above, we are not designating any areas outside the geographical area occupied by the species at the time of listing.
Units are designated based on one or more of the PBFs being present to support the narrow-headed gartersnake's life-history processes. Some units contain all of the identified PBFs and support multiple life-history processes. Some units contain only some of the PBFs necessary to support the narrow-headed gartersnake's use of that habitat.
The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document under Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on
We are designating eight units as critical habitat for the narrow-headed gartersnake. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the narrow-headed gartersnake.
The eight areas we designate as critical habitat for the narrow-headed gartersnake are: (1) Upper Gila River Subbasin; (2) San Francisco River Subbasin; (3) Blue River Subbasin; (4) Eagle Creek; (5) Black River Subbasin; (6) Canyon Creek; (7) Tonto Creek Subbasin; and (8) Verde River Subbasin. Table 1 shows the critical habitat units and the approximate area of each unit. All units are considered occupied at the time of listing.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the narrow-headed gartersnake, below.
Unit 1 consists of 7,005 ac (2,835 ha) in eight subunits along 104 stream mi (167 km): 46 stream mi (74 km) of the Gila River, 12 stream mi (20 km) of West Fork Gila River, 7 stream mi (11 km) of Little Creek, 14 stream mi (23 km) of Middle Fork Gila River, 6 stream mi (10 km) of Gilita Creek, 2 stream mi (3 km) of Iron Creek, 10 stream mi (16 km) of Black Canyon, and 6 stream mi (9 km) of Diamond Creek. The Upper Gila River Subbasin Unit is located in southwestern New Mexico, east of the town of Glenwood, and west and north of Silver City in Grant and Hidalgo Counties. The Upper Gila River Subbasin Unit occurs on lands managed by the USFS on Gila National Forest; Bureau of Land Management (BLM) within Lower Box and Middle Gila Box Areas of Critical Environmental Concern and Gila Lower Box Wilderness Study Area; National Park Service (NPS) on Gila Cliff Dwellings National Monument; New Mexico Department of Game and Fish on Bill Evans Fishing Area, Heart Bar Wildlife Area, Redrock State Wildlife Experimental Area, and Gila Bird Area; State Trust lands; and private entities.
Unit 1 is designated as critical habitat because it was occupied at the time of listing and as a whole, this unit contains PBFs 1, 2 and 5, with PBFs 3 and 4 may be in degraded condition. The Gila River, West Fork Gila River, Little Creek, Iron Creek, Black Canyon, and Diamond Creek subunits have PBFs 1, 2, 3, and 5, but PBF 4 is in degraded condition. The Middle Fork Gila River Subunit has PBF 1, 2, 4, and 5 with PBF 3 in degraded condition. Gilita Creek Subunit has all PBFs.
This unit requires special management to address the threats; some reaches of the Gila River have been adversely affected by channelization and water diversions. Populations of bullfrogs and nonnative, spiny-rayed fish dominate the aquatic community in some reaches of the West Fork and Middle Fork Gila River. Fish barriers on many streams are in place to limit upstream movement of some nonnative fish into areas that are managed for native fish. Crayfish densities are currently high in Diamond Creek. Wildfires have burned at both moderate and high severity within the unit and resulted in significant flooding with excessive ash and sediment loads in Middle Fork Gila River. These sediment and ash-laden floods can temporarily reduce populations of both nonnative aquatic predatory species and native prey species for narrow-headed gartersnakes in affected streams. The PBFs in this unit may require special management due to competition with, and predation by, nonnative species that are present in this unit; water diversions; channelization; potential for high-intensity wildfires; and human development of areas adjacent to critical habitat.
Unit 2 consists of 5,895 ac (2,386 ha) in six subunits along 129 stream mi (207 km): 71 stream mi (115 km) of San Francisco River, 9 stream mi (14 km) of Whitewater Creek, 8 stream mi (13 km) of Saliz Creek, 20 stream mi (33 km) of Tularosa River, 13 stream mi (20 km) of Negrito Creek, and 8 stream mi (13 km) of South Fork Negrito Creek. The San Francisco River Subbasin Unit is generally located in southwestern New Mexico near the towns of Glenwood and Reserve, and east of Luna, in Catron County. The San Francisco River Subbasin Unit consists of lands managed primarily by the U.S. Forest Service on Gila National Forest and private landowners.
Unit 2 is designated as critical habitat because it was occupied at the time of listing and as a whole, this unit contains PBFs 1, 2, and 5, but PBFs 3 and 4 may be in degraded condition. San Francisco River Subunit has PBFs 1, 2, and 5, but PBFs 3 and 4 are in degraded condition. Whitewater Creek Subunit has PBFs 1, 2, 4, and 5, but PBF 3 is in degraded condition. Tularosa River, Saliz Creek, and Negrito Creek subunits have PBFs 1, 2, 3, and 5, but PBF 4 is in degraded condition. South Fork Negrito Creek Subunit has adequate PBFs. Water diversions have dewatered sections of the San Francisco River Subunit in the upper Alma Valley and at Pleasanton, New Mexico. The San Francisco River Subunit also has populations of bullfrogs, crayfish, and nonnative, spiny-rayed fish at various densities along its course. Wildfires have burned at both moderate and high severity within the unit and likely resulted in significant flooding with excessive ash and sediment loads. These sediment and ash-laden floods can temporarily reduce populations of both nonnative aquatic predatory species and native prey species for narrow-headed gartersnakes in affected streams. The PBFs in this unit may require special management due to competition with,
Unit 3 consists of a total of 3,368 ac (1,363 ha) in three subunits along 64 stream mi (102 km): 52 stream mi (84 km) of Blue River, 7 stream mi (12 km) of Campbell Blue Creek, and 4 stream mi (7 km) of Dry Blue Creek. The Blue River Subbasin Unit is generally located near the east-central border of Arizona northeast of Clifton in Greenlee County, and just into west-central New Mexico in Catron County. Blue River Subbasin Unit consists of lands managed primarily by the U.S. Forest Service on Gila and Apache-Sitgreaves National Forests, and private landowners.
Unit 3 is designated as critical habitat because it was occupied at the time of listing and as a whole, this unit contains PBFs 1, 2, and 5, but PBFs 3 and 4 may be in degraded condition. The Blue River and Dry Blue Creek subunits have PBFs 1, 2, 3, and 5, but PFB 4 is in degraded condition. Campbell Blue Creek Subunit has PBFS 1, 2, 4, and 5, but PBF 3 may be in degraded condition. The fish community of the Blue River is highly diverse and largely native, but nonnative fish are present. Native fish restoration is actively occurring in the Blue River, including construction of a fish barrier, mechanical removal of nonnative fish, and repatriation and monitoring of federally listed warm-water fishes (Robinson and Crowder 2015, p. 24; Robinson and Love-Chezem 2015, entire). Native fish species persist in Campbell Blue Creek and Dry Blue Creek (Riley and Clarkson 2005, p. 10; Humphrey
Unit 4 consists of a total of 84 ac (34 ha) along 2 stream mi (4 km) of Eagle Creek. The Eagle Creek Unit is generally located in eastern Arizona near Morenci and includes portions of Greenlee County. The majority of lands within this unit are managed by the U.S. Forest Service on the Gila National Forest.
Unit 4 is designated as critical habitat because it was occupied at the time of listing and as a whole, this unit contains PBFs 1, 2, 3, 4, and 5, but PBF 4 is in degraded condition. Narrow-headed gartersnakes have been found in Eagle Creek at its confluence with Sheep Wash in 2013 (Ehlo
We have excluded 236 ac (96 ha) of lands owned by the San Carlos Apache Tribe in the Eagle Creek Unit (see Consideration of Impacts under Section 4(b)(2) of the Act, below).
Unit 5 consists of a total of 1,780 ac (720 ha) in six subunits along 45 stream mi (72 km): 19 stream mi (30 km) of Black River, 5 stream mi (7 km) of Bear Wallow Creek, 2 stream mi (3 km) of North Fork Bear Wallow Creek, 3 stream mi (6 km) of Reservation Creek, 4 stream mi (6 km) of Fish Creek, and 12 stream mi (19 km) of East Fork Black River. The Black River Subbasin Unit is generally located along the Mogollon Rim in east-central Arizona, east of Maverick and west of Hannigan Meadow, and includes portions of Apache and Greenlee Counties. All lands within this unit are managed by the U.S. Forest Service on Apache-Sitgreaves National Forest.
Unit 5 is designated as critical habitat because it was occupied at the time of listing and as a whole, this unit contains PBFs 1, 2, 3, and 5, but PBF 4 is in degraded condition. Crayfish, bullfrogs, and nonnative, spiny-rayed fish are present in some of this unit, and crayfish persist at high densities in the Black River (Lopez 2014d, p. 4; Nowak and Drost 2015, p. 5; Nowak
We have excluded 195 ac (79 ha) of lands owned by the White Mountain Apache and San Carlos Apache Tribes along the Black River, Bear Wallow Creek, and Reservation Creek of the Black River Subbasin Unit (see Consideration of Impacts under Section 4(b)(2) of the Act, below).
Unit 6 consists of 204 ac (82 ha) along 5 stream mi (8 km) of Canyon Creek. The Canyon Creek Unit is generally located along the Mogollon Rim in east-central Arizona, and falls within Gila County. The Tonto National Forest manages all lands within this unit.
Unit 6 is designated as critical habitat because it was occupied at the time of listing and as a whole, this unit contains all PBFs. The fish community is primarily native and includes specked dace (
We have excluded 77 ac (31 ha) of lands owned by the White Mountain Apache Tribe in the Canyon Creek Unit (see Consideration of Impacts under Section 4(b)(2) of the Act, below).
Unit 7 consists of a total of 2,293 ac (928 ha) in three subunits along 41 stream mi (66 km): 28 stream mi (46 km) of Tonto Creek, 0.7 stream mi (1.2 km) of Houston Creek, and 12 stream mi (19 km) of Haigler Creek. The Tonto Creek Subbasin Unit is generally located southeast of Payson, Arizona, and northeast of the Phoenix metropolitan area, in Gila County. Land ownership or land management within this unit consists of lands managed by the U.S. Forest Service on Tonto National Forest in the Hellsgate Wilderness and privately owned lands.
Unit 7 is designated as critical habitat because it was occupied at the time of listing and as a whole, this unit contains PBFs 1, 2, 3, and 5, but PBF 4 is in degraded condition. The PBFs in this unit may require special management due to competition with, and predation
Unit 8 consists of 3,156 ac (1,277 ha) in three subunits along 58 stream mi (93 km): 27 stream mi (43 km) of Verde River, 24 stream mi (39 km) of Oak Creek, and 7 stream mi (11 km) of West Fork Oak Creek. The Verde River Subbasin Unit is generally located near Perkinsville and Sedona, Arizona, west of Paulden, Arizona, in Coconino and Yavapai Counties. Verde River Subbasin Unit occurs on lands managed by the U.S. Forest Service on Prescott and Coconino National Forests, Arizona State Parks at Redrock State Park, and private entities.
Unit 8 is designated as critical habitat because it was occupied at the time of listing and as a whole, this unit contains PBFs 1, 2, 3, and 5, but PBF 4 is in degraded condition. The PBFs in this unit may require special management due to competition with, and predation by, nonnative species that are present; water diversions; groundwater pumping potentially resulting in drying of habitat; potential for high-intensity wildfires; and human recreation and human development of areas adjacent to critical habitat.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species.
We published a final rule revising the definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers (Corps) under section 404 of the Clean Water Act (33 U.S.C. 1251
Compliance with the requirements of section 7(a)(2) is documented through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law) and, subsequent to the previous consultation: (1) If the amount or extent of taking specified in the incidental take statement is exceeded; (2) if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or (4) if a new species is listed or critical habitat designated that may be affected by the identified action.
In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but the regulations also specify some exceptions to the requirement to reinitiate consultation on specific land management plans after subsequently listing a new species or designating new critical habitat. See the regulations for a description of those exceptions.
The key factor related to the adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat as a whole for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate section 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the narrow-headed gartersnake. Some of these activities may have short-term negative effects to designated critical habitat but may also result in long-term benefits to the gartersnake.
These activities include, but are not limited to:
(1) Actions that would alter the amount, timing, or frequency of flow within a stream or the quantity of available water within aquatic or wetland habitat such that the prey base for the narrow-headed gartersnake, or the gartersnake itself, are appreciably
(2) Actions that would significantly increase sediment deposition or scouring within the stream channel or pond that is habitat for the narrow-headed gartersnake, or one or more of their prey species within the range of the narrow-headed gartersnake. Such activities could include, but are not limited to: Livestock grazing that results in erosion contaminating waters; road construction; commercial or urban development; channel alteration; timber harvest; prescribed fires or wildfire suppression; off-road vehicle or recreational use; and other alterations of watersheds and floodplains. These activities could adversely affect the potential for gartersnake prey species to survive or breed. They may also reduce the likelihood that the gartersnake's prey species (
(3) Actions that would alter water chemistry beyond the tolerance limits of a gartersnake prey base. Such activities could include, but are not limited to: Release of chemicals, biological pollutants, or effluents into the surface water or into connected groundwater at a point source or by dispersed release (non-point source); aerial deposition of known toxicants, such as mercury, that are positively correlated to regional exceedances of water quality standards for these toxicants; livestock grazing that results in waters heavily polluted by feces; runoff from agricultural fields; roadside use of salts; aerial pesticide overspray; runoff from mine tailings or other mining activities; and ash flow and fire retardants from fires and fire suppression. These actions could adversely affect the ability of the habitat to support survival and reproduction of gartersnake prey species.
(4) Actions that would remove, diminish, or significantly alter the structural complexity of key natural structural habitat features in and adjacent to aquatic habitat. These features may be organic or inorganic, may be natural or constructed, and include (but are not limited to) boulders and boulder piles, cliff faces, rocks such as river cobble, downed trees or logs, debris jams, small mammal burrows, or leaf litter. Such activities could include, but are not limited to: Construction projects; flood control projects; vegetation management projects; or any project that requires a 404 permit from the U.S. Army Corps of Engineers. These activities could result in a reduction of the amount or distribution of these key habitat features that are important for gartersnake thermoregulation, shelter, protection from predators, and foraging opportunities.
(5) Actions and structures that would physically block movement of gartersnakes or their prey species within or between regionally proximal populations or suitable habitat. Such actions and structures include, but are not limited to: Urban, industrial, or agricultural development; reservoirs stocked with predatory fishes, bullfrogs, or crayfish; highways that do not include reptile and amphibian fencing and culverts; and walls, dams, fences, canals, or other structures that could physically block movement of gartersnakes. These actions and structures could reduce or eliminate immigration and emigration among gartersnake populations, or that of their prey species, reducing the long-term viability of populations.
(6) Actions that would directly or indirectly result in the introduction, spread, or augmentation of predatory nonnative species in gartersnake habitat, or in habitat that is hydrologically connected, even if those segments are occasionally intermittent, or introduction of other species that compete with or prey on the narrow-headed gartersnake or its prey base, or introduce pathogens. Possible actions could include, but are not limited to: Introducing or stocking nonnative, spiny-rayed fishes, bullfrogs, crayfish, or other predators of the prey base of narrow-headed gartersnakes; creating or sustaining a sport fishery that encourages use of nonnative live fish or crayfish as bait; maintaining or operating reservoirs that act as source populations for predatory nonnative species within a watershed; constructing water diversions, canals, or other water conveyances that move water from one place to another and through which inadvertent transport of predatory nonnative species into narrow-headed gartersnake habitat may occur; and moving water, mud, wet equipment, or vehicles from one aquatic site to another, through which inadvertent transport of pathogens may occur. These activities directly or indirectly cause unnatural competition with and predation from nonnative aquatic predators on the narrow-headed gartersnake, leading to reduced recruitment within gartersnake populations and diminishment or extirpation of their prey base.
(7) Actions that would deliberately remove, diminish, or significantly alter the native or nonnative, soft-rayed fish component of the narrow-headed gartersnake prey base within occupied habitat. In general, these actions typically occur in association with fisheries management, such as the application of piscicides in conjunction with fish barrier construction.
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. There are no Department of Defense (DoD) lands with a completed INRMP within the final critical habitat designation.
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless we determine, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making the determination to
On December 18, 2020, we published a final rule in the
Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.
As discussed below, based on the information provided by entities seeking exclusion, as well as any additional public comments received, we evaluated whether certain lands in the proposed critical habitat were appropriate for exclusion from this final designation pursuant to section 4(b)(2) of the Act. The Act affords a great degree of discretion to the Service in implementing section 4(b)(2). This discretion is applicable to a number of aspects of section 4(b)(2) including whether to enter into the discretionary 4(b)(2) exclusion analysis and the weights assigned to any particular factor used in the analysis. Most significant is that the decision to exclude is always discretionary, as the Act states that the Secretary “may” exclude any areas. Under no circumstances is exclusion required under the second sentence of section 4(b)(2). There is no requirement to exclude, or even to enter into a discretionary 4(b)(2) exclusion analysis for any particular area identified as critical habitat. Accordingly, per our discretion, we have only done a full discretionary exclusion analysis when we received clearly articulated and reasoned rationale to exclude the area from this critical habitat designation.
Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. In order to consider economic impacts, we prepared an incremental effects memorandum (IEM) and screening analysis which, together with our narrative and interpretation of effects, we consider our draft economic analysis (DEA) of the critical habitat designation and related factors (IEc 2019, entire). The analysis, dated October 10, 2019, was made available for public review from April 28, 2020, through June 29, 2020 (see 85 FR 23608; April 28, 2020). The DEA addressed probable economic impacts of critical habitat designation for the narrow-headed gartersnake. Following the close of the comment period, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. The DEA was updated in March 2021 to reflect changes made to critical habitat units from the revised proposed rule; however, the total incremental costs are not expected to change (IEc 2021, entire). Additional information relevant to the probable incremental economic impacts of the critical habitat designation for the narrow-headed gartersnake is summarized below and available in the screening analysis for the narrow-headed gartersnake (IEc 2021, entire), available at
In our IEM, we attempted to clarify the distinction between the effects that will result from the species being listed and those attributable to the critical habitat designation (
The critical habitat designation for the narrow-headed gartersnake totals 23,784 ac (9,625 ha) comprising eight units. Land ownership within critical habitat for the narrow-headed gartersnake in acres is broken down as follows: Federal (74 percent), State (Arizona and New Mexico) (3 percent), and private (23 percent) (see Table 1, above). All units are occupied.
In these areas, any actions that may affect the species would also affect designated critical habitat because the species is so dependent on habitat to fulfill its life-history functions. Therefore, any conservation measures to address impacts to the species would be the same as those to address impacts to critical habitat. Consequently, it is unlikely that any additional conservation efforts would be recommended to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the narrow-headed gartersnake. Further, every unit of critical habitat overlaps with the ranges of a number of currently listed species and designated critical habitats. Therefore, the actual number of section 7 consultations is not expected to increase. The consultation would simply have to consider an additional species or critical habitat unit. While this additional analysis will require time and resources by the Federal action agency, the Service, and third parties, the probable incremental economic impacts of the critical habitat designation are expected to be limited to additional administrative costs and would not be significant (IEc 2021, entire). This is due to all units being occupied by the narrow-headed gartersnake.
Based on consultation history for the gartersnake, the number of future consultations, including technical assistances, is likely to be no more than 21 per year. The additional administrative cost of addressing adverse modification in these consultations is likely to be less than $61,000 in a given year, including costs to the Service, the Federal action agency, and third parties (IEc 2021, p. 14), with approximately $28,000 for formal consultations, $32,000 for informal consultations, and $1,100 for technical assistances. This is based on an individual technical assistance costing $410, informal consultation costing $2,500, and formal consultation
The Service considered the economic impacts of the critical habitat designation. We are not exercising our discretion to exclude any areas from this designation of critical habitat for the narrow-headed gartersnake based on economic impacts.
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns (
However, we cannot automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homeland-security impacts, it must provide a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If we conduct an exclusion analysis because the agency provides a reasonably specific justification or because we decide to exercise the discretion to conduct an exclusion analysis, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary section 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.
We have determined that the lands within the designation of critical habitat for the narrow-headed gartersnake are not owned or managed by DoD or DHS. We did not receive any requests for exclusion based on impacts to national security or homeland security. Therefore, we anticipate no impact on national security or homeland security, and we are not exercising our discretion to exclude any lands based on impacts to national security or homeland security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. Other relevant impacts may include, but are not limited to, impacts to Tribes, States, local governments, public health and safety, community interests, the environment (such as increased risk of wildfire or pest and invasive species management), Federal lands, and conservation plans, agreements, or partnerships. To identify other relevant impacts that may affect the exclusion analysis, we consider a number of factors, including whether there are permitted conservation plans covering the species in the area—such as HCPs, safe harbor agreements (SHAs), or candidate conservation agreements with assurances (CCAAs)—or whether there are non-permitted conservation agreements and partnerships that may be impaired by designation of, or exclusion from, critical habitat. In addition, we look at whether Tribal conservation plans or partnerships, Tribal resources, or government-to-government relationships of the United States with Tribal entities may be affected by the designation. We also consider any State, local, public-health, community-interest, environmental, or social impacts that might occur because of the designation.
When analyzing other relevant impacts of including a particular area in a designation of critical habitat, we weigh those impacts relative to the conservation value of the particular area. To determine the conservation value of designating a particular area, we consider a number of factors, including, but not limited to, the additional regulatory benefits that the area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the listed species, and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.
In the case of the narrow-headed gartersnake, the benefits of critical habitat include public awareness of the presence of the species and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the gartersnake due to the protection from destruction or adverse modification of critical habitat. Continued implementation of an ongoing management plan that provides conservation equal to or more than the protections that result from a critical habitat designation would reduce those benefits of including that specific area in the critical habitat designation.
Based on the information provided by entities seeking exclusion, any additional public comments we received, and the best scientific data available, we evaluated whether certain lands in the critical habitat were appropriate for exclusion from this final designation under section 4(b)(2) of the Act. If the analysis indicated that the benefits of excluding lands from the final designation outweigh the benefits of designating those lands as critical habitat, then we identified those areas for the Secretary to exercise her discretion to exclude the lands from the final designation, unless exclusion would result in extinction.
In the paragraphs below, we provide a detailed balancing analysis of the areas we evaluated for exclusion from critical habitat under section 4(b)(2) of the Act.
We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service, sometimes through the permitting process under Section 10 of the Act.
When we undertake a discretionary section 4(b)(2) analysis, we evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when we undertake a discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list of factors that we will consider for non-permitted plans or agreements is shown below (see Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR 7226; February 11, 2016)). These factors are not required elements of plans or agreements, and all items may not apply to every plan or agreement.
(i) The degree to which the plan or agreement provides for the conservation of the species or the essential physical or biological features (if present) for the species.
(ii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented.
(iii) The demonstrated implementation and success of the chosen conservation measures.
(iv) The degree to which the record of the plan supports a conclusion that a critical habitat designation would impair the realization of benefits expected from the plan, agreement, or partnership.
(v) The extent of public participation in the development of the conservation plan.
(vi) The degree to which there has been agency review and required determinations (
(vii) Whether NEPA compliance was required.
(viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information.
Critical habitat for gartersnakes was identified for the Gila River (563 ac (228 ha)) on Freeport-McMoRan privately owned lands where the narrow-headed gartersnake occurs.
FMC completed their Spikedace and Loach Minnow Management Plan for the Upper Gila River (FMC management plan), including Bear Creek and Mangas Creek in Grant County, New Mexico, in 2011. The FMC management plan was created in response to a proposed rule to designate critical habitat for the spikedace and loach minnow along reaches of the Gila River, Mangas Creek, and Bear Creek (75 FR 66482; October 28, 2010) owned by FMC. Water rights are also included in these land holdings. The majority of these lands are owned by Pacific Western Land Company (PWLC) and included the U-Bar Ranch, which has been managed under a rest-rotation livestock grazing strategy since approximately 1992. The focus of management actions pertaining to spikedace and loach minnow occur along the middle section of the upper Gila River, the perennial portion of Mangas Creek, and lower portion of Bear Creek near the village of Gila within the Gila-Cliff Valley of New Mexico. Collectively and through existing water diversions, these lands and associated water rights support mining operations at the Tyrone Mine as well as livestock operations along the Gila River.
Livestock operations within the U-Bar Ranch consider the needs of the southwestern willow flycatcher and are considered to provide indirect benefits to spikedace and loach minnow under the FMC management plan. For the purposes of this analysis, we reviewed the commitments made in the FMC management plan that pertain to spikedace and loach minnow, not the southwestern willow flycatcher, due to their ecological needs, which more closely overlap those of the narrow-headed gartersnake. In the past, FMC has funded fish surveys within the U-Bar Ranch along the Gila River, as well as Mangas and Bear Creeks. The FMC management plan established a framework for cooperation and coordination with the Service in connection with future resource management activities based on adaptive management principles. FMC lands are closed to public use, which eliminates potential concerns for effects to riparian and streambed habitat from off-highway vehicle use, camping, and hiking. Access to FMC lands are provided for wildlife survey needs.
The FMC management plan also commits to maintaining base flow in the Gila River within its planning area, through a cessation of water diversions at the Bill Evans Reservoir diversion, provided two conditions are met: (1) The Gila River is flowing at less than 25 cubic feet per second (cfs) per day at USGS Gage 09431500, near Redrock, New Mexico (the nearest gage downstream from FMC's point of diversion); and (2) the water level in Bill Evans Reservoir is at least 4,672 ft above sea level. In the event that the first condition is satisfied but the reservoir level is below 4,672 ft above sea level, FMC will confer with NMDGF (which owns Bill Evans Reservoir) regarding temporary curtailment of water diversions. Therefore, maintaining minimum flow in the Gila River is not under the sole discretion of FMC. In the event water use changes become necessary, FMC provides us with notice of any significant changes in its water uses and diversions and will confer about impacts of such changes on spikedace and loach minnow habitat.
FMC has also committed to funding biennial fish surveys and the maintenance of survey locations, fisheries biologists, techniques, and protocols along the lands associated with the Gila River and to providing subsequent data to us. Lastly, FMC committed to make reasonable efforts to coordinate and encourage adjacent landowners, as well as confer with us on opportunities to increase local public awareness, to assist in their conservation management and, when appropriate, assist other landowners to these ends. The FMC management plan considers adaptive management, which includes, if necessary, the development of alternative conservation measures at a total cost of $500,000, for habitat protection. Summarized, the FMC management plan commits to ongoing grazing using rest-rotation at moderate levels, the prohibition of public trespass unless for the purposes of surveys and
As discussed above under Effects of Critical Habitat Designation,
Because the narrow-headed gartersnake occurs in this area, the benefits of a critical habitat designation are reduced to the possible incremental benefit of critical habitat because the designation would not be the sole catalyst for initiating section 7 consultation. However, should a catastrophic event such as disease, drought, wildfire, chemical spill, etc., result in potential or actual extirpation of the gartersnake population in this area, designation of critical habitat will ensure future Federal actions do not result in adverse modification of critical habitat, allowing for future recovery actions to occur.
Another important benefit of including lands in a critical habitat designation is that it can serve to educate landowners, agencies, Tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high value for certain species. Any information about the narrow-headed gartersnake that reaches a wide audience, including parties engaged in conservation activities, is valuable. The designation of critical habitat may also affect the implementation of Federal laws, such as the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of important sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Despite its benefits to the spikedace and loach minnow, the FMC management plan does not provide adequate conservation of the narrow-headed gartersnake because:
• The management plan does not commit to any conservation measures that directly address the leading threat facing the narrow-headed gartersnake across its range: The presence of predatory nonnative aquatic species.
• Within the FMC management plan area, livestock have sustained access to the riparian corridor, which negatively impacts narrow-headed gartersnakes because gartersnakes require adequate cover for protection from predators and to assist with thermoregulation.
• The decision to change the amount of diverted Gila River water in the event of flows reaching 25 cfs or below are contingent upon an external entity to the FMC management plan and their desires for management of the Bill Evans Reservoir, adding uncertainty to this measure in terms of its implementation.
• Benefits of an unquantifiable and therefore unknown effort associated with enhancing cooperative conservation with adjacent landowners yields high uncertainty pertaining to both implementation of the measure and potential benefits realized by its implementation.
One benefit from excluding FMC-owned lands as narrow-headed gartersnake critical habitat is the maintenance and strengthening of ongoing conservation partnerships. FMC has demonstrated a willingness to partner with the Service in conservation planning for several species in Arizona and New Mexico. Examples include becoming a conservation partner in the development and implementation of the Southwestern Willow Flycatcher Recovery Plan, and by solidifying their conservation actions in management plans submitted to us for the southwestern willow flycatcher, and for the spikedace and loach minnow (2007 and 2011). They have also demonstrated a willingness to conserve southwestern willow flycatcher and western yellow-billed cuckoo (
Our collaborative relationship with FMC in the conservation arena makes a difference in our partnership with the numerous stakeholders involved in aquatic species recovery and management and influences our ability to form partnerships with others. Concerns over perceived, added regulation potentially imposed by critical habitat could harm this collaborative relationship.
Because important areas for gartersnake conservation can occur on private lands, collaborative relationships with private landowners can be important in order to further recovery. The narrow-headed gartersnake and its habitat could benefit in some cases, from voluntary landowner management actions that implement appropriate and effective conservation strategies. Where consistent with the discretion provided by the Act, it is beneficial to implement policies that provide positive incentives to private landowners to voluntarily conserve natural resources and that remove or reduce disincentives to conservation (Wilcove
We have determined that the benefits of inclusion of the Gila River on private lands managed by FMC outweigh the benefits of exclusion based on several factors. Above, we outlined several instances where management actions set forth in the plan either do not pertain directly to the needs of narrow-headed gartersnake critical habitat, do not have the necessary assurances that beneficial actions will indeed occur, or provide minimal benefits to gartersnake conservation and recovery in general. However, we will continue to work with FMC in the conservation arena as they are an important partner of the Service in conservation planning for several species in Arizona and New Mexico.
After weighing the benefits of inclusion as narrow-headed gartersnake critical habitat against the benefits of exclusion, we have concluded that the
Critical habitat for the narrow-headed gartersnake was identified for Whitewater Creek that includes 2.9 ac (1.2 ha) of lands that are part of the Glenwood State Fish Hatchery owned by NMDGF. NMDGF established the Glenwood State Fish Hatchery adjacent to Whitewater Creek in 1938. The hatchery currently raises female sterile rainbow trout (
We received a comment from NMDGF requesting that this area within the Glenwood State Fish Hatchery be excluded from the final designation of critical habitat. NMDGF's rationale for requesting exclusion was that there are no records of the species within the hatchery boundary and Whitewater Creek is not perennial at the hatchery. NMDGF further explains that the Service's Memorandum for the Intra-Service Section 7 Endangered Species Act Consultation for the Proposed Operation and Maintenance of Hatchery Facilities NM F-66 Project concurred with a “no effect” determination for the narrow-headed gartersnake because the snake is not currently present.
In the revised proposed critical habitat rule (85 FR 23608; April 28, 2020), we reviewed narrow-headed gartersnake occupancy to determine that a stream or stream reach was occupied at the time of listing for narrow-headed gartersnake if it is within the historical range of the species, contains PBFs for the species (although the PBFs concerning prey availability and presence of nonnative aquatic predators are often in degraded condition), and has a last known record of occupancy between 1998 and 2019 (see Occupancy Records, 85 FR 23608, p. 23617-23619) (see Criteria Used To Identify Critical Habitat). Although narrow-headed gartersnakes have not been detected at the hatchery, the segment of Whitewater Creek included in the critical habitat designation for the narrow-headed gartersnake, including where the creek flows through the hatchery, meets this definition.
In the revised proposed critical habitat rule (85 FR 23608; April 28, 2020) and this rule, we also define perennial, intermittent, and ephemeral as related to stream flow included in PBF 1 for the narrow-headed gartersnake and clarify the spectrum of stream flow regimes that provide stream habitat for the species based on scientifically accepted stream flow definitions (Levick
In regard to NMDGF's assertion that the hatchery should not be listed as critical habitat because of the Service's previous concurrence with a “no effect” determination under a Section 7 Intra-Service consultation, a critical habitat determination is not synonymous with a determination that an area is occupied for the purposes of a jeopardy analysis under Section 10 of the Act. Under section 7 of the Act, Federal agencies are required to consult with the Service to ensure that the actions they carry out, fund, or authorize are not likely to jeopardize the continued existence of the species, or destroy or adversely modify critical habitat. For a jeopardy or “take” analysis, we analyze effects to a species if the species is present in the action area during the time of the action. For an adverse modification analysis, we analyze effects to critical habitat if critical habitat for a species is present in the action area. Therefore, an effect determination is different than a critical habitat designation. A critical habitat determination depends on the best available information at the time of the analysis, and the likely effects and likelihood of take depend on the action under consideration. NMDGF does not have a management plan for the narrow-headed gartersnake at the hatchery, but has stated that if a population became established at the hatchery in the future, they would implement conservation actions such as identifying and protecting hibernacula, foraging sites, and corridors within the limits of hatchery operations; maintaining or improving existing habitat for the species; and conducting regular monitoring of the population (NMDGF 2020, p. 1). Regardless of the absence of narrow-headed gartersnake on a very small portion of Whitewater Creek in the hatchery boundary, as discussed above, Whitewater Creek, including the hatchery property, meets the Service's definition of critical habitat. There are no current management actions set forth that pertain directly to the needs of narrow-headed gartersnake critical habitat, and without a plan we lack the necessary assurances that beneficial actions will occur. We are committed to working with the NMDGF to further narrow-headed gartersnake conservation, and we expect the continuation of our conservation partnership help foster the maintenance and development of narrow-headed gartersnake habitat in the vicinity of the Glenwood State Fish Hatchery.
Under section 4(b)(2) of the Act, we can exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. However, there are no current management actions set forth that pertain directly to the needs of narrow-headed gartersnake critical habitat.
With respect to NMDGF's request to exclude the Glenwood State Fish Hatchery along Whitewater Creek, we are not excluding the area from this final rule for the reasons mentioned above. NMDGF has demonstrated a willingness to partner with the Service in conservation planning for several species in New Mexico, including recovery actions for listed fish species that occur in the Gila River subbasin. Our collaborative relationship with NMDGF in the conservation arena makes a difference in our partnership with the numerous stakeholders involved in aquatic species recovery and management, and influences our ability to form partnerships with others, and we will continue to collaborate on conservation efforts now and into the future.
HCPs for incidental take permits under section 10(a)(1)(B) of the Act provide for partnerships with non-Federal entities to minimize and mitigate impacts to listed species and
CCAAs and SHAs are voluntary agreements designed to conserve candidate and listed species, respectively, on non-Federal lands. In exchange for actions that contribute to the conservation of species on non-Federal lands, participating property owners are covered by an “enhancement of survival” permit under section 10(a)(1)(A) of the Act, which authorizes incidental take of the covered species that may result from implementation of conservation actions, specific land uses, and, in the case of SHAs, the option to return to a baseline condition under the agreements. The Service also provides enrollees assurances that we will not impose further land-, water-, or resource-use restrictions, or require additional commitments of land, water, or finances, beyond those agreed to in the agreements.
When we undertake a discretionary section 4(b)(2) exclusion analysis based on permitted conservation plans such as CCAAs, SHAs, and HCPs, we consider the following three factors:
(i) Whether the permittee is properly implementing the conservation plan or agreement;
(ii) Whether the species for which critical habitat is being designated is a covered species in the conservation plan or agreement; and
(iii) Whether the conservation plan or agreement specifically addresses the habitat of the species for which critical habitat is being designated and meets the conservation needs of the species in the planning area.
We are not excluding any areas under private or other non-Federal conservation plans related to permits under section 10 of the Act.
Several Executive Orders, Secretarial Orders, and policies concern working with Tribes. These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control Tribal lands, emphasize the importance of developing partnerships with Tribal governments, and direct the Service to consult with Tribes on a government-to-government basis. When we undertake a discretionary 4(b)(2) exclusion analysis, we will always consider exclusion of Tribal lands, and give great weight to Tribal concerns in analyzing the benefits of exclusion. However, Tribal concerns are not a factor in determining what areas, in the first instance, meet the definition of “critical habitat.”
A joint Secretarial Order that applies to both the Service and the National Marine Fisheries Service (NMFS)—Secretarial Order 3206,
However, S.O. 3206 does not preclude us from designating Tribal lands or waters as critical habitat, nor does it state that Tribal lands or waters cannot meet the Act's definition of “critical habitat.” We are directed by the Act to identify areas that meet the definition of “critical habitat” (
We identified approximately 339 ac (137 ha) of narrow-headed gartersnake critical habitat that occurs on San Carlos Apache Tribe lands within portions of the Eagle Creek Unit (236 ac (96 ha)), Black River Subunit (55 ac (22 ha)), and Bear Wallow Creek Subunit (48 ac (19 ha)).
The San Carlos Apache Tribe manages a land area over 1.8 million ac (>728,435 ha) in size, ranging in elevation from 2,400 ft (732 m) to 8,000 ft (2,440 m), in the east-central region of Arizona. In 2005, the San Carlos Apache Recreation and Wildlife Department finalized the San Carlos Apache Tribe Fishery Management Plan (SCAT FMP; San Carlos Apache Tribe 2005, entire), which prescribes fisheries management objectives across their reservation. The SCAT FMP addresses both management of nonnative sportfish (a source of revenue for the Tribe) in reservoirs, stock tanks, and streams, but also contains management objectives for native fish. With respect to nonnative sportfish, primary management areas include San Carlos Reservoir, Talkalai Lake, Seneca Lake, Point of Pines Lake, and Dry Lake (San Carlos Apache Tribe 2005, p. 4). Stock tanks of larger size are also managed for sportfish. Approximately 30 stock tanks on the reservation support recreational sport fishing activities. However, erosion and lack of maintenance of these tanks have rendered many tanks too shallow to support this use, and many tanks have gone dry (San Carlos Apache Tribe 2005, p. 5). Approximately 170 miles (273 kilometers) of perennial rivers occur on the reservation where sport fishing is managed, including the Black, Salt, Gila, San Carlos, and Blue Rivers, as well as Eagle, Willow, Bear Wallow, and Bonita Creeks (San Carlos Apache Tribe 2005, pp. 5-6). Of these streams on the reservation, narrow-headed gartersnakes are known to occur along the Black River, Eagle Creek, and Bear Wallow Creek.
In general, natural resource management on the San Carlos Apache Reservation is guided by a collection of resolutions and management plans that cover such topics as wildland fire, forest, and range, including specific management plans for southwestern willow flycatchers and Mexican spotted owls (
The SCAT FMP “sets the framework to conserve, enhance, and restore nongame, threatened and endangered native fish and their habitats as part of the overall natural diversity found on the Reservation for the enjoyment by present and future generations” (San Carlos Apache Tribe 2005, p. 63). The SCAT FMP has six goals relevant to native fish management, each of which has identified objectives, actions, and evaluations (San Carlos Apache Tribe 2005, pp. 63-71).
The first goal is to develop and implement integrated, watershed-based approaches to fishery resource management. The primary objective of this goal is to identify native fish management units within each of the six subbasins on the Reservation and develop initial management recommendations for each management unit (San Carlos Apache Tribe 2005, p. 64). Implementing this objective requires the identification of needs for native fish within each management unit. Evaluation for meeting this objective includes considering which native fish occur and where, developing decision-based criteria, comparing the value of native fish to that of its relative sport fish value, and determining future management recommendations for the best overall use of each management unit (San Carlos Apache Tribe 2005, p. 64).
The second goal under the SCAT FMP is to “conserve, enhance, and maintain existing native fish populations and their habitats as part of the natural diversity of the Reservation as a home and abiding place for Tribal members” (San Carlos Apache Tribe 2005, p. 65). Five objectives are identified to implement this goal: Developing a survey program, determining the status of natives fishes within streams on the Reservation and possible corrective actions to improve their status where necessary, prioritizing research needs, developing an “Adopt a Stream” program to facilitate monitoring and protection of aquatic and riparian resources, and developing a contingency plan to address catastrophic drought and wildfire events (San Carlos Apache Tribe 2005, p. 67).
The third goal of the SCAT FMP is to restore extirpated fishes and degraded natural habitats when appropriate and economically feasible. To accomplish this goal, the Tribe develops and implements guidelines for reintroduction, translocation, and reestablishment of native fishes and their habitats by completing a needs assessment for native fishes on the Reservation (San Carlos Apache Tribe 2005, pp. 67-68).
The fourth goal of the SCAT FMP is to prevent, minimize, or mitigate adverse impacts to all native fishes, particularly threatened or endangered species, and their habitats when consistent with the Reservations values as a home and abiding place for Tribal members. Five actions are listed to achieve this goal: Participation in section 7 consultations; participation in the Tribal integrated resource management planning process; literature reviews pertaining to best practices and alternative uses; education and demonstrations to benefit Tribal Cattle Association members; and the review and recommendation of land use practices, policies, and plans to minimize adverse impacts to native fish and their habitats (San Carlos Apache Tribe 2005, pp. 68-69).
The fifth goal of the SCAT FMP includes education to increase Tribal awareness of native fish conservation and values through identification of Tribal perceptions and attitudes regarding native fish. A minimum of once per year, the Tribe plans and participates in public workshops that discuss native fish biology, conservation, and management. In addition to these topics, at these workshops the Tribe discusses how to reduce impacts and improve status of native fishes (San Carlos Apache Tribe 2005, pp. 69-70).
The final goal of the SCAT FMP requires the Tribe to pursue funding to support all previously stated goals and objectives outlined in the SCAT FMP (San Carlos Apache Tribe 2005, p. 70).
As discussed above under Effects of Critical Habitat Designation,
Because the species occurs in Eagle Creek, Black River, and Bear Wallow Creek, the benefits of a critical habitat designation are reduced to the possible incremental benefit of critical habitat because the designation would not be the sole catalyst for initiating section 7 consultation. However, should a catastrophic event such as disease, drought, wildfire, chemical spill, etc., result in potential or statistically-proven, actual extirpation of the gartersnake population in this area, designation of critical habitat would ensure future Federal actions do not result in adverse modification of critical habitat, allowing for future recovery actions to occur.
Were we to designate critical habitat on these Tribal lands, our section 7 consultation history indicates that there may be some, but few, regulatory benefits to the narrow-headed gartersnake. As described above, even with narrow-headed gartersnakes occurring on these Tribal lands, no formal section 7 consultations have yet to occur. When we review future projects addressing the narrow-headed gartersnake pursuant to section 7 of the Act in Arizona, we will examine conservation measures associated with the project for their value in the conservation of narrow-headed gartersnakes or their habitat. Where there is consistency with managing habitat and implementing suitable conservation measures, it would be unlikely that a consultation would result in a determination of adverse modification of critical habitat. Therefore, when the threshold for adverse modification is not reached, only additional conservation recommendations could result from a section 7 consultation, but such measures would be discretionary on the part of the Federal agency.
Another important benefit of including lands in a critical habitat designation is that the designation can serve to inform and educate landowners and the public regarding the potential conservation value of an area, and may help focus management efforts on areas of high value for certain species. The Tribe, through their Recreation and Wildlife Department, surveys all proposed home and construction projects, and provides information from the SCAT FMP for use in negotiating water exchanges and in determining mitigation measures for projects that may impact listed species or their habitat. Therefore, the Recreation and Wildlife Department has an opportunity to provide information regarding the species and its habitat across the Reservation. In addition, the Tribe has
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as NEPA or the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Therefore, because of the development and implementation of a management plan, ongoing habitat conservation, the rare initiation of formal section 7 consultations, the occurrence of narrow-headed gartersnakes on Tribal lands, and the Service's coordination with Tribes on gartersnake-related issues, it is expected that there may be some, but limited, benefits from including these Tribal lands in a narrow-headed gartersnake critical habitat designation. The principal benefit of any designated critical habitat is that activities in and affecting such habitat require consultation under section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid destruction or adverse modification of critical habitat.
The benefits of excluding San Carlos Apache Tribe lands from designated critical habitat in portions of Eagle Creek, Black River, and Bear Wallow Creek include: (1) Demonstrating our commitment to defer to the Tribe to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the narrow-headed gartersnake and its habitat that might not otherwise occur; (2) the continuance and strengthening of our effective working relationships with the Tribe to promote conservation of narrow-headed gartersnakes through that of native fish and their habitat, as well as other federally listed species; and (3) promoting continued meaningful collaboration and cooperation in working toward recovering native aquatic communities, including narrow-headed gartersnake habitat.
Because the Tribe is the entity that enforces protective regulations on Tribal trust reservation land, and because we have a working relationship with them, we believe exclusion of these lands will yield a significant partnership benefit. The Tribe is coordinating with the AGFD and the Service on surveys and captive propagation plans for native fish, which furthers conservation of narrow-headed gartersnakes. We continue to work cooperatively with the Tribe on efforts to conserve spikedace and loach minnow on the Reservation, which benefits other native fish as the primary prey base for narrow-headed gartersnakes.
During this rulemaking process, we have communicated with the San Carlos Apache Tribe to discuss how they might be affected by the regulations associated with listing and designating critical habitat for the narrow-headed gartersnake. We have determined that the San Carlos Apache Nation should be the governmental entity to manage and promote narrow-headed gartersnake conservation on their lands. During our coordination efforts with the San Carlos Apache Tribe, we recognized and endorsed their fundamental right to provide for Tribal resource management activities, including those relating to aquatic habitat that supports narrow-headed gartersnakes. As outlined above, the San Carlos Apache Tribe has developed and implemented a fisheries management plan specific to needs of prey and habitat for narrow-headed gartersnakes. Overall, the commitments toward management of narrow-headed gartersnake habitat by the San Carlos Apache Tribe will likely accomplish greater conservation than would be available through a designation of critical habitat.
The designation of critical habitat would be viewed as an intrusion and impact the Tribe's sovereign ability to manage natural resources in accordance with their own policies, customs, and laws. These impacts include, but are not limited to: (1) Limiting the San Carlos Apache Tribe's ability to protect and control its own resources on its lands; (2) undermining the positive and effective government-to-government relationship between the Tribe and the Service—a relationship that serves to protect federally listed species and their habitat; and (3) hampering or confusing the Tribe's own long-standing protections for the Eagle Creek, Black River, and Bear Wallow Creek. The perceived restrictions of a critical habitat designation could have a damaging effect on coordination efforts, possibly preventing actions that might maintain, improve, or restore habitat for the narrow-headed gartersnake and other species. We view this as a substantial benefit since we have developed a cooperative working relationship with the Tribe for the mutual benefit of the gartersnake and other endangered and threatened species.
In addition, we anticipate that future management plans, including additional conservation efforts for other listed species and their habitats, may be hampered if critical habitat is designated on Tribal lands already being managed for sensitive species conservation. We have determined that many Tribes are willing to work cooperatively with us and others to benefit other listed and sensitive species, but only if they view the relationship as mutually beneficial. Consequently, the development of future voluntary management actions for other listed species may be compromised if these Tribal lands are designated as critical habitat for the narrow-headed gartersnake. Thus, a benefit of excluding these lands would be future conservation efforts that would benefit other listed or sensitive species.
The benefits of including San Carlos Apache Tribal lands in the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7, the consideration of the need to avoid adverse modification of critical habitat, and interagency and educational awareness. However, due to the rarity of Federal actions resulting in formal section 7 consultations, the benefits of a critical habitat designation are minimized. In addition, the benefits of consultation are further minimized because any conservation measures that may have resulted from consultation are already provided through the conservation benefits to the narrow-headed gartersnake and its habitat from implementation of the SCAT FMP.
The Tribe has indicated a commitment to traditional ecological knowledge (TEK), which uses an ecosystem-based approach to land and species management and preservation. In addition, they have developed the Fisheries Management Plan, which benefits spikedace and loach minnow specifically and, by extension, all native fish, by discontinuing nonnative fish stocking in areas important for their conservation. Further, the Tribe is working with both the Service and the AGFD to these ends.
The Tribe has focused on known areas of concern for the species' management and has discontinued stocking of nonnative fishes in some areas, including the Eagle Creek watershed. The Fisheries Management Plan contains goals of conserving and enhancing native fishes on the Reservation; restoring native fishes and their habitats; and preventing, minimizing, or mitigating impacts to native fishes, among others. In addition, the Tribe has indicated that, through TEK, they practice an ecosystem-based approach to land- and species-based management and preservation. We conclude that the benefits to be gained through the Fisheries Management Plan, coordination with the Service and AGFD, discontinuance of sportfish stocking, and proactive measures for native fish all indicate that the Tribe has committed to conservation measures that exceed benefits to be gained through a critical habitat designation. Collectively, these measures help secure native fish communities on the Reservation, which are critical to the continued survival of the narrow-headed gartersnake. As a result, we have determined that the benefits of excluding these Tribal lands from critical habitat designation outweigh the benefits of including these areas.
We have determined that exclusion of San Carlos Apache Tribe lands from the critical habitat designation will not result in the extinction of the narrow-headed gartersnake. We base this determination on several points. First, as discussed above under Effects of Critical Habitat Designation,
We identified approximately 169 ac (68 ha) of narrow-headed gartersnake critical habitat that occurs on White Mountain Apache Tribe lands within portions of the Black River Subunit (56 ac (23 ha)), Bear Wallow Creek Subunit (<0.01 ac (<0.01 ha)), Reservation Creek Subunit (36 ac (15 ha)), and Canyon Creek Unit (77 ac (31 ha)).
The White Mountain Apache Tribe's Fort Apache Indian Reservation encompasses approximately 1,680,000 acres in east-central Arizona, ranging in elevation from 11,590 to 2,640 ft (White Mountain Apache Tribe 2014, p. 1). A total of 23 artificial reservoirs were created on the Reservation to provide recreational opportunities such as fishing, boating, and camping permits (White Mountain Apache Tribe 2014, p. 1). The White Mountain Apache Tribe Native Fishes Management Plan (WMAT NFMP) identified native fish species that are historically known from the Reservation and provides available information on their current status and distribution. The WMAT NFMP also identified significant stressors to native fish, which include dewatering, sedimentation, mechanical stream channel alteration, and interactions with nonnative aquatic species. The WMAT NFMP lists guidance- and direction-related documents, management plans, ordinances and codes, and Tribal resolutions that help address these issues and many others which could affect natural resources on the Reservation and are currently in effect (White Mountain Apache Tribe 2014, pp. 11-15). These guidance documents include the Tribe's 2000 Loach Minnow Management Plan and Resolution #89-149, which designates streams and riparian zones as Sensitive Fish and Wildlife areas, requiring that authorized programs ensure these zones remain productive for fish and wildlife.
The primary purpose of the WMAT NFMP is to “promote the practical and effective long-term conservation of all native fish populations and their habitats found on the Reservation” (White Mountain Apache Tribe 2014, p. 19). The WMAT NFMP “sets the framework to conserve, enhance, and if possible, restore non-game, threatened and endangered native fish and their habitats as part of the overall natural diversity found on the Reservation for the enjoyment of present and future generations of Apache people” (White Mountain Apache Tribe 2014, p. 19). To accomplish this, four primary goals are set forth in the WMAT NFMP.
The first goal of the WMAT NFMP is to conserve and maintain existing native fish populations and their habitats as part of the natural diversity of the Reservation when consistent with the Reservation as a homeland for White Mountain Apache Tribal members (White Mountain Apache Tribe 2014, p. 20). To accomplish this, via literature review and expert consultation, the Tribe developed a protocol for standardized sampling and data analysis specific to the inventory, survey, population modeling, monitoring, and other management techniques for all native fishes and their habitats. This protocol will be used to determine the current distribution and relative abundance of all native fishes and their habitats, with an emphasis on rare or sensitive species in order to identify native fish management units within each of the watersheds on the Reservation to develop initial management recommendations for each (White Mountain Apache Tribe 2014, p. 20). The Tribe has also committed to updating the Loach Minnow Management Plan as well as follow the management strategies in the Apache Trout Recovery Plan. These actions will help develop research needs and implement research in the field. Under this first goal, the Tribe also intends to develop an “Adopt-a-Lake/Stream” program, where Tribal members volunteer to help monitor and protect aquatic riparian resources (White Mountain Apache Tribe 2014, p. 23).
The second goal of the WMAT NFMP is to enhance native fish populations and degraded natural habitats when appropriate and economically feasible by: (1) Developing guidelines for enhancing native fish populations and their habitats; (2) investigating available funding opportunities and requirements to support all Tribal conservation and management activities for all native fishes, their habitats, and other listed
The third goal of the WMAT NFMP is to prevent, minimize, or mitigate adverse impacts to all native fishes, especially threatened or endangered, and their habitats when consistent with the purpose of the Reservation as a permanent homeland for White Mountain Apache Tribal members by: (1) Identifying species and habitat types that are declining or imperiled, or likely to become imperiled, in the foreseeable future and the threats causing decline; (2) identifying possible corrective actions needed to limit or mitigate adverse impacts to native fish and their habitats where appropriate and economically feasible, including consideration of threats and mitigation measures to multiple listed candidate or proposed aquatic or riparian obligate species; and (3) collaborating with others to maintain or enhance native fish populations and their habitats or prevent avoidable and mitigate unavoidable losses (White Mountain Apache Tribe 2014, pp. 25-27).
The fourth and final goal of the WMAT NFMP focuses on increasing Tribal awareness of native fish conservation and values. The WMAT NFMP proposes to accomplish this by: (1) Identifying Tribal perceptions and attitudes regarding nongame, threatened, and endangered native fishes; (2) annually developing, sponsoring, and participating in educational workshops and presentations pertaining to the biology, conservation, and management of nongame, threatened, or endangered native fishes and their habitats; and (3) informing the Tribe of the status of nongame, threatened, and endangered native fishes and threats to their protection and maintenance, and Tribal actions to reduce or eliminate such adverse impacts (White Mountain Apache Tribe 2014, pp. 28-29).
The White Mountain Apache Tribe has a process to review and approve all development activities on the Reservation. The Tribal Plan and Project Review Panel, among other things, investigates impacts to sensitive habitats and species, and provides for the implementation of mitigation measures to avoid adverse impacts to those resources. To assist, the White Mountain Apache Tribe has a full-time Sensitive Species Coordinator and Technician who coordinates and participates in protection, research, management, and administrative activities involving Federally listed sensitive species on the Reservation.
The White Mountain Apache Tribe's Loach Minnow Management Plan also provides transitory benefits to narrow-headed gartersnake conservation. The goals of the Loach Minnow Management Plan are to determine and quantify the full extent of loach minnow distribution on the Reservation; continue to develop and strengthen management actions that effectively address species threats and that provide adequate protection for, and sustainability of, existing Reservation loach minnow populations and habitats; complete the development and ongoing maintenance of Tribal data, information, and mapping for this and other native fish species; and evaluate and refine the application of Plan management practices, over time, in a manner that promotes the practical and effective long-term conservation of all Reservation native fish populations and assemblages, including those of loach minnow (White Mountain Apache Tribe 2000).
The Loach Minnow Management Plan provides an action and strategy outline with eight steps that provide additional detail on how they will be carried out. The eight steps of the management plan that may affect PBFs of the narrow-headed gartersnake include:
• Determining the distribution of loach minnow within Reservation boundaries;
• Continuing routine surveys and expanding efforts to include habitat assessment;
• Continuing to monitor and refine existing management treatments involving irrigation uses and activities to develop adequate mitigation against related threats;
• Continuing to apply and refine existing monitoring and mitigation protocols involving low water and/or drought conditions to provide sustainable protection of loach minnow populations;
• Developing contingency plans with responses to potential catastrophic events;
• Evaluating and refining existing nonnative fish management and mitigation practices to provide sustainable protection of loach minnow populations and habitat;
• Organizing data collection, handling, storage, and maintenance among partners; and
• Continuing to monitor and refine existing Tribal Plan and Project Review Process, management plans, and practices to meet loach minnow and native fish management goals.
As discussed above under Effects of Critical Habitat Designation,
Because the species occurs in the area, the benefits of a critical habitat designation are reduced to the possible incremental benefit of critical habitat because the designation would not be the sole catalyst for initiating section 7 consultation. However, should a catastrophic event such as disease, drought, wildfire, chemical spill, etc., result in potential or statistically-proven, actual extirpation of the gartersnake population in this area, designation of critical habitat would ensure future Federal actions do not result in adverse modification of critical habitat, allowing for future recovery actions to occur.
Were we to designate critical habitat on these Tribal lands, our section 7 consultation history indicates that there may be some, but few, regulatory benefits to the narrow-headed gartersnake. As described above, even with narrow-headed gartersnakes occurring on these Tribal lands, formal section 7 consultations have yet to occur. When we review future projects addressing the narrow-headed gartersnake pursuant to section 7 of the Act in Arizona, we examine conservation measures associated with the project for their value in the conservation of narrow-headed gartersnakes or their habitat. Where there is consistency with managing habitat and implementing suitable conservation measures, it would be unlikely that a consultation would result in a determination of adverse modification of critical habitat. Therefore, when the threshold for
Another important benefit of including lands in a critical habitat designation is that the designation can serve to inform and educate landowners and the public regarding the potential conservation value of an area, and may help focus management efforts on areas of high value for certain species. The White Mountain Apache Tribe has developed management plans for the loach minnow and native fish in general, and currently employs a Sensitive Species Coordinator through which education of Tribal members can occur without critical habitat designation. In addition, Tribal fisheries biologists participate in review of development projects and timber sales and can work to educate project proponents of the species' needs.
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as NEPA or the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Therefore, because of the development and implementation of a native fish management plan, ongoing habitat conservation, the rare initiation of formal section 7 consultations, the occurrence of narrow-headed gartersnakes on Tribal lands, and the Service's coordination with Tribes on gartersnake-related issues, it is expected that there may be some, but limited, benefits from including these Tribal lands in a narrow-headed gartersnake critical habitat designation. The principal benefit of any designated critical habitat is that activities in and affecting such habitat require consultation under section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid destruction or adverse modification of critical habitat.
The benefits of excluding White Mountain Apache Tribe lands from designated critical habitat in portions of Black River, Bear Wallow Creek, and Reservation Creek subunits, and in Canyon Creek Unit include: (1) Our deference to the Tribe to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the narrow-headed gartersnake and its habitat that might not otherwise occur; (2) the continuance and strengthening of our effective working relationships with the Tribe to promote conservation of narrow-headed gartersnakes through that of native fish and their habitat, as well as other federally listed species; and (3) promoting continued meaningful collaboration and cooperation in working toward recovering native aquatic communities, including narrow-headed gartersnake habitat.
Taken individually or collectively, the White Mountain Apache Tribe's commitments to the conservation of riparian and aquatic habitats and the native fishes that depend on them offers a strong foundation for future conservation of the narrow-headed gartersnake. As we have carefully detailed in this and previous rulemakings pertaining to the narrow-headed gartersnake, the protection, conservation, and recovery of native fish communities is of utmost importance to the continued existence of the narrow-headed gartersnake because this species is a predatory specialist which preys only on fish. Therefore, the conservation of native fish communities will provide the suite of protections required to sustain its prey base and maintain gartersnake populations on the Reservation and elsewhere such protections are afforded.
During this rulemaking process, we have communicated with the White Mountain Apache Tribe to discuss how they might be affected by the regulations associated with listing and designating critical habitat for the narrow-headed gartersnake. We have determined that the White Mountain Apache Tribe should be the governmental entity to manage and promote narrow-headed gartersnake conservation on their lands. During our coordination efforts with the White Mountain Apache Tribe, we recognized and endorsed their fundamental right to provide for Tribal resource management activities, including those relating to aquatic habitat that supports narrow-headed gartersnakes. As outlined above, the White Mountain Apache Tribe has developed and implemented a native fishes management plan specific to needs of prey and habitat for narrow-headed gartersnakes. Overall, the commitments toward management of narrow-headed gartersnake habitat by the White Mountain Apache Tribe will likely accomplish greater conservation than would be available through a designation of critical habitat.
The designation of critical habitat would be viewed as an intrusion and impact their sovereign abilities to manage natural resources in accordance with the Tribe's own policies, customs, and laws. These impacts include, but are not limited to: (1) Limiting the White Mountain Apache Tribe's ability to protect and control its own resources on its lands; (2) undermining the positive and effective government-to-government relationship between the Tribe and the Service—a relationship that serves to protect federally listed species and their habitat; and (3) hampering or confusing the Tribe's own long-standing protections for the Black River, Reservation Creek, Bear Wallow Creek, and Canyon Creek. The perceived restrictions of a critical habitat designation could have a damaging effect on coordination efforts, possibly preventing actions that might maintain, improve, or restore habitat for the narrow-headed gartersnake and other species. Our working relationships with the Tribe would be better maintained if we excluded their lands from the designation of narrow-headed gartersnake critical habitat. We view this as a substantial benefit since we have developed a cooperative working relationship with the White Mountain Apache Tribe for the mutual benefit of the narrow-headed gartersnake and other endangered and threatened species.
The benefits of including White Mountain Apache Tribal lands in the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7, the consideration of the need to avoid adverse modification of critical habitat, and interagency and educational awareness. However, due to the rarity of Federal actions resulting in formal section 7 consultations, the benefits of a critical habitat designation are minimized. In addition, the benefits of consultation are further minimized because any conservation measures that may have resulted from consultation are already provided through the conservation benefits to the narrow-headed gartersnake and its habitat from implementation of the White Mountain Apache Tribe Native Fishes Management Plan.
The White Mountain Apache Tribe clearly explained their sovereign
Based on our working relationship with the White Mountain Apache Tribe, their demonstration of conservation through past efforts, and the protective provisions of the WMAT NFMP and Loach Minnow Management Plan, we have determined that the benefits of excluding these Tribal lands from critical habitat designation outweigh the benefits of including these areas.
We have determined that exclusion of White Mountain Apache Tribe lands from the critical habitat designation will not result in the extinction of the narrow-headed gartersnake. We base this determination on several points. First, as discussed above under Effects of Critical Habitat Designation,
Table 2 below presents areas of lands that meet the definition of critical habitat but for which we are excluding from this final critical habitat designation for the narrow-headed gartersnake.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent court decisions, Federal agencies are required to evaluate only the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. There is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities will be directly regulated by this rulemaking, the Service certifies that this final critical habitat designation will not have a significant economic impact on a substantial number of small entities.
During the development of this final rule, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Based on this information, we affirm our certification that this final critical habitat designation will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our economic analysis, we did not find that this critical habitat designation will significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely affect small governments because the lands being designated for critical habitat are owned by private landowners, the States of New Mexico and Arizona, and the Federal Government (USFS, NPS, BLM, and Service). In addition, based in part on an analysis conducted for the previous proposed designation of critical habitat and extrapolated to this designation, we do not expect this rule to significantly or uniquely affect small governments. Small governments will be affected only to the extent that any
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the narrow-headed gartersnake in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed and concludes this designation of critical habitat for the narrow-headed gartersnake does not pose significant takings implications for lands within or affected by the designation.
In accordance with E.O. 13132 (Federalism), this rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this critical habitat designation with, appropriate State resource agencies. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the final rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The final designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act will be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this rule identifies the physical or biological features essential to the conservation of the narrow-headed gartersnake. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the NEPA in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the
We performed the NEPA analysis, and the draft environmental assessment was made available for public comment with publication of the revised proposed critical habitat designation (85 FR 23608; April 28, 2020). We invited the public to comment on the extent to which the proposed critical habitat designation may have a significant impact on the human environment, or fall within one of the categorical exclusions for actions that have no individual or cumulative effect on the quality of the human environment. We received five comments during the comment period for the environmental assessment. Our environmental assessment found that the impacts of the revised proposed critical habitat designation would be minor and not rise to a significant level, so preparation of an environmental impact statement is not required. The final environmental assessment and finding of no significant impact has been completed and is available for review with the publication of this final rule. You may obtain a copy of the final environmental assessment online at
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We directly contacted GRIC, the White Mountain Apache Tribe, and the San Carlos Apache Tribe during the rulemaking process. We will continue to work on a government-to-government basis with Tribal entities on conservation of habitat after the designation of critical habitat for the narrow-headed gartersnake.
A complete list of references cited in this rulemaking is available on the internet at
The primary authors of this final rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Arizona Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(c) * * *
Narrow-headed Gartersnake (
(1) Critical habitat units are depicted for Greenlee, Apache, Yavapai, Gila, and Coconino Counties in Arizona, as well as in Grant, Hidalgo, and Catron Counties in New Mexico, on the maps in this entry.
(2) Within these areas, the physical or biological features essential to the conservation of narrow-headed gartersnake consist of the following components:
(i) Perennial streams or spatially intermittent streams that provide both aquatic and terrestrial habitat that allows for immigration, emigration, and maintenance of population connectivity of narrow-headed gartersnakes and contain:
(A) Pools, riffles, and cobble and boulder substrate, with a low amount of fine sediment and substrate embeddedness;
(B) Organic and natural inorganic structural features (
(C) Water quality that meets or exceeds applicable State surface water quality standards; and
(D) Terrestrial habitat up to 328 feet (100 meters) from the active stream channel (water's edge) that includes flood debris, rock piles, and rock walls containing cracks and crevices, small mammal burrows, downed woody debris, and streamside vegetation (
(ii) Hydrologic processes that maintain aquatic and riparian habitat through:
(A) A natural flow regime that allows for periodic flooding, or if flows are modified or regulated, a flow regime that allows for the movement of water, sediment, nutrients, and debris through the stream network, as well as maintenance of native fish populations; and
(B) Physical hydrologic and geomorphic connection between the active stream channel and its adjacent terrestrial areas.
(iii) A combination of native fishes, and soft-rayed, nonnative fish species such that prey availability occurs across seasons and years.
(iv) An absence of nonnative aquatic predators, such as fish species of the families Centrarchidae and Ictaluridae, American bullfrogs (
(v) Elevations of 2,300 to 8,200 feet (700 to 2,500 meters).
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on November 22, 2021.
(4) Data layers defining map units were created using the U.S. Geological Survey's 7.5' quadrangles, National Hydrography Dataset and National Elevation Dataset; the Service's National Wetlands Inventory dataset; and aerial imagery from Google Earth Pro. Line locations for lotic streams (flowing water) and drainages are depicted as the “Flowline” feature class from the National Hydrography Dataset geodatabase. The active channel along a stream is depicted as the “Wetlands” feature class from the Service's National Wetlands Inventory dataset. Any discrepancies between the “Flowline” and “Wetlands” feature classes were resolved using aerial imagery from Google Earth Pro. Elevation range is masked using the “Elev_Contour” feature class of the National Elevation Dataset. The administrative boundaries for Arizona and New Mexico were obtained from the Arizona Land Resource Information Service and New Mexico Resource Geographic Information System, respectively. This includes the most current (as of November 22, 2021) geospatial data available for land ownership, counties, States, and streets. Locations depicting critical habitat are expressed as decimal degree latitude and longitude in the World Geographic Coordinate System projection using the 1984 datum (WGS84). The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service's internet site at
(5) Note: Index map follows:
Figure 1 to Narrow-headed Gartersnake paragraph (5)
(6) Unit 1: Upper Gila River Subbasin Unit, Grant and Hidalgo Counties, New Mexico.
(i) Unit 1 consists of 7,005 acres (ac) (2,835 hectares (ha)) in Grant and Hidalgo Counties, and is composed of lands in Federal (4,084 ac (1,653 ha)), State (553 ac (224 ha)), and private (2,368 ac (958 ha)) ownership in eight subunits west of the town of Glenwood, north of Silver City, and South of Gila and Cliff.
(ii) Map of Unit 1 follows:
Figure 2 to Narrow-headed Gartersnake paragraph (6)(ii)
(7) Unit 2: San Francisco River Subbasin Unit, Catron County, New Mexico.
(i) Unit 2 consists of 5,895 ac (2,386 ha) in Catron County, and is composed of lands in Federal (3,924 ac (1,588 ha)), State (3 ac (1 ha)), and private (1,967 ac (796 ha)) ownership in six subunits near the towns of Glenwood and Reserve.
(ii) Map of Unit 2 follows:
Figure 3 to Narrow-headed Gartersnake paragraph (7)(ii)
(8) Unit 3: Blue River Subbasin Unit, Greenlee County, Arizona, and Catron County, New Mexico.
(i) Unit 3 consists 3,368 ac (1,363 ha) in Greenlee County, Arizona, and Catron County, New Mexico, and is composed of lands in Federal (2,918 ac (1,181 ha)) and private (450 ac (182 ha)) ownership in three subunits near the towns of Blue, Arizona, and Luna, New Mexico.
(ii) Map of Unit 3 follows:
Figure 4 to Narrow-headed Gartersnake paragraph (8)(ii)
(9) Unit 4: Eagle Creek Unit, Greenlee County, Arizona.
(i) Unit 4 consists of 84 ac (34 ha) in Greenlee County, and is composed of lands in Federal (84 ac (34 ha)) and private (1 ac (<1 ha)) ownership near the town of Woolaroc.
(ii) Map of Unit 4 follows:
Figure 5 to Narrow-headed Gartersnake paragraph (9)(ii)
(10) Unit 5: Black River Subbasin Unit, Apache and Greenlee Counties, Arizona.
(i) Unit 5 consists of 1,780 ac (720 ha) in Apache and Greenlee Counties, and is composed of lands in Federal (1,780 ac (720 ha)) ownership in six subunits near the towns of Maverick and Hannigan Meadow.
(ii) Map of Unit 5 follows:
Figure 6 to Narrow-headed Gartersnake paragraph (10)(ii)
(11) Unit 6: Canyon Creek Unit, Gila County, Arizona.
(i) Unit 6 consists of 204 ac (82 ha) in Gila County, and is composed of lands in Federal (204 ac (82 ha)) ownership southwest of the town of Heber.
(ii) Map of Unit 6 follows:
Figure 7 to Narrow-headed Gartersnake paragraph (11)(ii)
(12) Unit 7: Tonto Creek Subbasin Unit, Gila County, Arizona.
(i) Unit 7 consists of 2,293 ac (928 ha) in Gila County, and is composed of lands in Federal (2,176 ac (881 ha)) and private (117 ac (47 ha)) ownership in three subunits near the towns of Jakes Corner and Gisela.
(ii) Map of Unit 7 follows:
Figure 8 to Narrow-headed Gartersnake paragraph (12)(ii)
(13) Unit 8: Verde River Subbasin Unit, Coconino and Yavapai Counties, Arizona.
(i) Unit 8 consists of 3,156 ac (1,277 ha) in Coconino and Yavapai Counties, and is composed of lands in Federal (2,446 ac (990 ha)), State (109 ac (44 ha)), and private (602 ac (244 ha)) ownership in three subunits near the towns of Sedona and Perkinsville.
(ii) Map of Unit 8 follows:
Figure 9 to Narrow-headed Gartersnake paragraph (13)(ii)
Justice Management Division, Department of Justice.
Notice of proposed rulemaking.
The Department of Justice is proposing to revise the Justice Acquisition Regulations (JAR), in its entirety in order to update and streamline agency procurement actions consistent with the Federal Acquisition Reform Act, and the Federal Acquisition Streamlining Act. The JAR supplements the executive branch-wide Federal Acquisition Regulations (FAR) to address matters specific to the Department of Justice relating to its procurement of goods and services. It covers mostly internal policies and procedures, but also includes some rules governing private entities doing business with the Department.
Electronic comments must be submitted and written comments must be postmarked or otherwise indicate a shipping date on or before December 20, 2021.
If you wish to provide comment regarding this rulemaking, you must submit comments, identified by the agency name and reference Docket No. JMD 155, by one of the two methods below.
•
•
Tara M. Jamison, Director, Office of Acquisition Management, Justice Management Division, 145 N Street NE, Room 8W.210, Washington, DC 20530, (202) 616-3754 (not a toll-free call).
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule via the one of the methods and by the deadline stated above. All comments must be submitted in English, or accompanied by an English translation. The Department of Justice (Department) also invites comments that relate to the economic, environmental, or federalism effects that might result from this rule. Comments that will provide the most assistance to the Department in developing these procedures will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.
Please note that all comments received are considered part of the public record and made available for public inspection at
Confidential business information identified and located as set forth above will not be placed in the public docket file. The Department may withhold from public viewing information provided in comments that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of
When Federal agencies acquire supplies or services using appropriated funds, the purchase is governed by the Federal Acquisition Regulations (FAR), set forth at title 48 of the CFR, chapter 1, parts 1 through 53, and any agency regulations that implement or supplement the FAR.
The Office of Federal Procurement Policy Act (OFPP), as codified in 41 U.S.C. 1707, provides the authority for an agency to issue acquisition regulations that implement or supplement the FAR. This authority ensures that Government procurements are handled fairly and consistently, that the Government receives overall best value, and that the Government and contractors both operate under a known set of rules.
The Justice Acquisition Regulations (JAR) are set forth at title 48 CFR, chapter 28, parts 2801 through 2852, and provide procurement regulations that supplement the FAR to address matters specific to the Department of Justice (“the Department” or “DOJ”) relating to its acquisition of goods and services. As such, the JAR covers only those areas where agency implementation is required by the FAR, or where DOJ policies and procedures exist that supplement FAR coverage.
The revisions proposed in this rule will, when finalized, align internal departmental guidance in the JAR with the FAR and remove outdated and duplicative requirements. The revisions will revise the existing regulation promulgated at 63 FR 16118-01 on April 2, 1998, corrected at 63 FR 26738-01, May 14, 1998, and amended at 64 FR 37044-01, July 9, 1999 (together, the “current regulation”). Among other things, the revisions will: (1) Update definitions and descriptions, (2) streamline certain sections, (3) remove extraneous procedural information that applies only to DOJ's internal operating procedures, (4) delete outdated information, (5) incorporate new regulatory sections to align with internal bureau procedures as appropriately contained in DOJ policy orders and policy instructions, and (6) simplify other parts for efficiency.
This rulemaking effort creates an efficient JAR that is more straightforward and less burdensome. The revised JAR will supersede the current regulation in its entirety.
The FAR contains many requirements related to agency procedures, which will not be repeated in DOJ's revision of the JAR. If the JAR does not include provisions supplementing the FAR under the corresponding part or subpart, it is because the FAR language is considered sufficient. Where the JAR states “in accordance with bureau procedures” or “in accordance with agency procedures,” this does not mean
Most of the proposed changes to 48 CFR chapter 28 relate to internal Department policies and procedures that do not impact the public. For example, the revisions identify the individuals within the Department who will exercise particular responsibilities set forth in the FAR, and whether such responsibilities may be delegated. There are, however, two provisions that impact the public. Part 2833 contains revisions to the process for filing and deciding agency protests of procurement decisions. In addition, the proposed revisions include a new section 2852.212-4, which is a FAR deviation that sets forth certain terms and conditions that will apply to all software licenses.
While most of the changes to the JAR proposed by this rule relate to internal policies and procedures, some changes govern matters relating to private entities selling goods or services to the Department. In particular, the proposed rule includes changes related to the filing and deciding of procurement protests filed with the Department, and also includes a FAR deviation that establishes certain terms and conditions that will be incorporated in all software licenses with the Department.
Some subparts/subsections that are being removed addressed matters that are now addressed in new subparts/subsections with different numbering, while some subparts/subsections are being removed altogether. The removal of sub-parts as proposed by this rule merely eliminates from the JAR provisions that are either already in the FAR or that only pertain to internal policy guidance. None of the subparts or subsections being removed altogether addressed matters affecting persons or entities external to the Department. To the extent matters addressed in such removed subpart/subsections are incorporated into internal Department guidance documents, this will not affect persons or entities external to the Department.
Attached to this proposed rule is an Appendix that lists the sections of the JAR that are being proposed for removal and/or renaming. The Appendix will not be codified.
This regulation has been drafted and reviewed in accordance with Executive Orders 12866 and 13563. This rule is primarily limited to agency organization, management and personnel as described by Executive Order 12866, section 3(d)(3) and, therefore, is not a “regulation” as defined by that Executive order. Accordingly, this action has not been reviewed by the Office of Management and Budget.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives. JMD has examined the economic, budgetary, and policy implications of its regulatory action, and has determined that the impact on the public is minimal. The regulation mainly relates to internal Department policies and procedures that do not impact the public.
The Attorney General in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that it will not have a significant economic impact on a substantial number of small entities for the following reasons. The proposed rule applies primarily to DOJ internal operating procedures and would generally be business neutral. DOJ estimates that no cost impact would result from this rule update for individual business.
This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal Governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal Governments or on the private sector.
This rule is not a major rule as defined by the Congressional Review Act, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
The Justice Management Division has determined that this action is a rule relating primarily to agency organization, procedure or practice that does not substantially affect the rights or obligations of non-agency parties, and, accordingly, is not a “rule” as that term is used by the Congressional Review Act. Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
This rule imposes no information collection or recordkeeping requirements.
In accordance with Paragraph 8 of Attorney General Order 1687-93, the undersigned is authorized to sign and submit this document to the Office of the Federal Register for publication electronically as an official document of the Department of Justice.
Government procurement.
Conflict of interest, Government procurement.
Classified information, Government procurement, Reporting and recordkeeping requirements.
Government procurement, Individuals with disabilities.
Environmental protection, Government procurement.
Foreign currencies, Foreign trade, Government procurement.
Government procurement, Insurance, Surety bonds.
Government procurement, Taxes.
Accounting, Government procurement.
Administrative practice and procedure, Government procurement.
Computer technology, Government procurement.
Government procurement, Reporting and recordkeeping requirements, Utilities.
Accounting, Freight, Government procurement, Reporting and recordkeeping requirements.
Government procurement, Reporting and recordkeeping requirements, Warranties.
Government procurement, Reporting and recordkeeping requirements.
Accordingly, for the reasons set out in the preamble, chapter 28 of title 48 of the CFR is proposed to be revised to read as follows:
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
(a) The Justice Acquisition Regulation (JAR) provides agency guidance, in accordance with Federal Acquisition Regulation (FAR) 1.301(a)(2), and establishes, in this chapter, procurement regulations that supplement the FAR, 48 Code of Federal Regulations (CFR) chapter 1, and must be utilized conjunction with the FAR.
(b)(1) The JAR contains Department of Justice (DOJ) policies that govern DOJ's acquisition process or otherwise control acquisition relationships between DOJ's contracting activities and contractors. The JAR contains -
(i) Requirements of law;
(ii) Deviations from the FAR requirements; and
(iii) Policies that either have a significant effect beyond the internal procedures of DOJ or a significant cost or administrative impact on contractors or offerors.
(2) Relevant internal DOJ policies, procedures, guidance, and information not meeting the criteria in paragraph (b)(1) of this section are issued by DOJ in other announcements, internal policies, procedures, or guidance.
The JAR is subdivided into parts, which correspond to FAR parts. The numbering system permits the discrete identification of every JAR paragraph. This numbering system permits immediate identification of each JAR part with coverage of the same subject matter and same numbering system as
The Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) and the Office of Management and Budget's (OMB) implementing regulations at 5 CFR part 1320, require that reporting and recordkeeping requirements affecting ten (10) or more members of the public be cleared by OMB. The OMB control number for the collection of information under this chapter is 1103-0018.
Pursuant to FAR 1.304, the Senior Procurement Executive (SPE) is responsible for ensuring that bureau acquisition guidance and directives do not restrain the flexibilities found in the FAR. For this reason, bureaus shall forward any bureau acquisition guidance to the SPE upon issuance. The SPE has the authority to revoke any guidance or directive considered restrictive of the regulations found in the FAR.
Individual deviations from the FAR or the JAR that affect only one contract action shall be approved by the Head of the Contracting Activity (HCA) or designee.
Requests for class deviations from the FAR or JAR shall be submitted to the SPE. The SPE will consult with the chairperson of the Civilian Agency Acquisition Council (CAAC), as appropriate, and send his/her recommendations to the Chief Acquisition Officer (CAO). The CAO will grant or deny requests for such deviations. Requests for deviations involving basic ordering agreements, master type contracts, or situations where multiple awards are made from one solicitation are considered to involve more than one contract and, therefore, are considered class deviation requests.
Requests for approval of class deviations from the FAR or the JAR, for any solicitation that will result in multiple awards, shall be forwarded to the SPE. Such requests will be signed by the Bureau Procurement Chief (BPC).
(a) In accordance with Attorney General Order 1687-93, the authority vested in the Attorney General (AG) with respect to contractual actions for goods and services is delegated to the following officials to serve as HCAs:
(1) Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF);
(2) Director, Bureau of Prisons (BOP);
(3) Administrator, Drug Enforcement Administration (DEA);
(4) Director, Federal Bureau of Investigation (FBI);
(5) Director, Federal Prison Industries (FPI/UNICOR);
(6) Inspector General, Office of the Inspector General (OIG);
(7) Assistant Attorney General, Office of Justice Programs (OJP);
(8) Director, U.S. Marshals Service (USMS); and
(9) Assistant Attorney General for Administration (AAG/A) (for the Offices, Boards, and Divisions).
(b) The acquisition authority delegated to the officials in paragraph (a) of this section may be re-delegated to subordinate officials as necessary for the efficient and proper administration of the Department's acquisition operations, unless otherwise prohibited by the FAR or JAR. Such re-delegated authority shall expressly state whether it carries the power of re-delegation of authority.
Contracting officers may appoint individuals to act as authorized representatives in the monitoring and administration of a contract. Such officials shall be designated as a Contracting Officer's Representative (COR). When a COR is to be designated, contracting officers shall include the clause at JAR 2852.201-70 in all contracts. A COR's authority is limited to the authority set forth in the subject clause.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
Throughout this chapter, the following words and terms are used as defined in this subpart unless the context in which they appear clearly requires a different meaning, or a different definition is prescribed for a particular part or portion of a part.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The DOJ regulations governing Standards of Conduct are contained in 5 CFR part 2635.
(a) Upon receipt of information regarding a violation or possible violation of 41 U.S.C. 2102, 2103, or 2104, the contracting officer must make the determination required by FAR 3.104-7(a) and follow the procedures prescribed therein.
(1) Make the determination required by FAR 3.104-7(a) and follow the procedures prescribed therein.
(2) [Reserved]
(b) The individual referenced in FAR 3.104-7(a)(1) is the BPC.
(c) The HCA or designee must follow the criteria contained in FAR 3.104-7(g) when delegating authority under this subpart.
(d) The HCA or designee shall refer information regarding actual or possible violations of section 41 U.S.C. 2102, 2103, or 2014 to the OIG or other office designated in Attorney General Order 1931-94.
(e) If the HCA or designee, after receiving information relating to a violation, or possible violation, determines that award or extension of a contract potentially affected by the violation is justified by urgent and compelling circumstances, or is otherwise in the interest of the Government, then the HCA may authorize the contracting officer to award or extend the contract after notification to the OIG or other office designated in Attorney General Order 1931-94.
(f) The HCA will advise the contracting officer as to the action to be taken. Criminal and civil penalties, and administrative remedies, may apply to conduct that violates 41 U.S.C. Chapter 21, see FAR 3.104-8.
(g) The contracting officer shall advise the SPE in writing of all allegations of violations. The contracting officer must describe the alleged violation as well as actions taken.
DOJ personnel shall report suspected violations of the gratuities clause, FAR 52.203-3, to the contracting officer or chief of the contracting office in writing. The report shall clearly state the circumstances surrounding the incident, including the nature of the gratuity, the time period in which it occurred, the behavior or action the gratuity was intended to influence, and the persons involved. The contracting officer or chief of the contracting office, after review, shall forward the report along with his or her recommendations regarding the treatment of the violation in accordance with FAR 3.204(c) to the HCA, or designee.
(a) The HCA or designee shall determine whether adverse action against the contractor in accordance with FAR 3.204(c) may be taken. In reaching a decision, the HCA or designee shall consult with the contracting activity's legal advisor and the OIG or other office designated in Attorney General Order 1931-94.
(b) The SPE shall be advised of all instances where violations have been determined to have occurred and any action taken as a result.
(c) Prior to taking any action against the contractor, the HCA or designee shall allow the contractor the opportunity to present opposing arguments in accordance with FAR 3.204(b).
DOJ personnel shall report suspected antitrust violations to the Attorney General (AG) through the Assistant Attorney General (AAG) for the Antitrust Division (ATR).
(a) The report for the AG shall be addressed to: Attorney General,
(b) The report shall include:
(1) A brief statement describing the suspected practice and the reason for the suspicion; and
(2) The name, address, and telephone number of an individual in the agency who can be contacted for further information.
Employees who suspect, or have evidence of, violations by a contractor of the Covenant Against Contingent Fees, see FAR subpart 3.4, must report the matter to the contracting officer or appropriate higher authority, in accordance with agency procedures. Employees who suspect or have evidence of fraudulent or criminal activities must report the matter to the SPE and the OIG.
Evidence of suspected violations of 31 U.S.C. 1352, Limitation on the Use of Appropriated Funds to Influence Certain Federal Contracting and Financial Transactions, may be submitted in accordance with agency procedures to the SPE and the OIG or other office designated in Attorney General Order 1931-94.
As used in this subpart—
(a) Upon receipt of a complaint filed pursuant to FAR 3.904, the Inspector General shall conduct an investigation and provide a written report of findings to the HCA, or designee.
(b) The HCA or designee will ensure that the Inspector General provides the report of finding to the individuals and entities specified in FAR 3.905(c).
(c) The complainant and contractor shall be afforded the opportunity to submit to the HCA or designee a written response to the report of findings within 30 days of receipt of the report. The HCA or designee may grant extensions of time to file a written response.
(d) The HCA or designee may request that the Inspector General conduct additional investigative work on the complaint at any time.
(a) Upon determination that a contractor has subjected one of its employees to a reprisal for providing information as set forth in FAR 3.906(a), the HCA or designee may take one or more actions specified in FAR 3.906(a).
(b) Whenever a contractor fails to comply with an order issued pursuant to FAR 3.906(a), the HCA or designee shall notify the Attorney General and request that DOJ file an action for enforcement of such order in the United States District Court.
The contracting officer shall ensure that any General NDA that DOJ requires a Covered Individual to sign contains the required Whistleblower Protection Provision at JAR 2852.203-70.
The contracting officer shall ensure that any Intelligence-Related NDA that DOJ requires a Covered Individual to sign contains the required Whistleblower Protection Provision at JAR 2852.203-71.
The information required to be inserted in the clause at FAR 52.203-14, Display of Hotline Poster(s), is the following:
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
Classified acquisitions or contracts, which require access to classified material, as defined in FAR 4.402, for their performance shall be subject to the policies, procedures, and instructions contained in departmental regulations and shall be processed in a manner consistent with those regulations. Contractors at all tiers are required to comply with all such policies, procedures, and instructions.
It is DOJ policy that all acquisitions which allow unescorted contractor access to Government facilities or sensitive information contain, as appropriate, requirements for appropriate personnel security screening by the contractor. To the maximum extent practicable, contractors shall be made responsible for the performance of personnel security screening. The personnel security screening may vary from one acquisition to another, depending upon the type, context, duration and location of the work to be performed. Classified contracts are exempted from the
(a) Pursuant to FAR 4.903, the HCA or designee shall certify to the SPE, in the format specified in this section, that such official has examined the information submitted by that bureau as its Federal Procurement Data System (FPDS) data, that the data has been prepared pursuant to the requirements of 26 U.S.C. 6050M, and that, to the best of such official's knowledge and belief, it is compiled from bureau records maintained in the normal course of business for the purpose of making a true, correct, and complete return as required by 26 U.S.C. 6050M.
(b) The following certification will be signed and dated by the HCA or designee and submitted with each bureau's annual FPDS report.
I, ________(Name), ________(Title) have examined the information to be submitted by ________(Bureau) to the DOJ Senior Procurement Executive, for making information returns on behalf of the Department of Justice to the Internal Revenue Service, and certify that this information has been prepared pursuant to the requirements of 26 U.S.C. 6050M and that, to the best of my knowledge and belief, it is a compilation of bureau records maintained in the normal course of business for the purpose of providing true, correct, and complete returns as required by 26 U.S.C. 6050M.
(c) The SPE will certify the consolidated FPDS data for the Department, transmit the data to the Federal Procurement Data Center (FPDC), and authorize the FPDC to make returns to the IRS on behalf of the agency.
(a) The Technical and Miscellaneous Revenue Act of 1988, Public Law 100-647, amended, 26 U.S.C. 6050M, to allow exceptions to the reporting requirements for certain classified or confidential contracts.
(b) The head of the agency has determined that the filing of information returns, as required by 26 U.S.C. 6050M, on confidential contracts, which involve law enforcement or foreign counterintelligence activities, would interfere with the effective conduct of those confidential law enforcement or foreign counterintelligence activities, and that the special reporting exceptions added to 26 U.S.C. 6050M by the Technical and Miscellaneous Revenue Act of 1988 apply to these types of contracts.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The HCA or designee is the agency head for the purposes of the determination required by FAR 5.202 (b).
The SPE is the agency head for the purposes of FAR 5.403.
The SPE is the agency head for the purposes of FAR 5.404-1(a) and (b).
This subpart provides policies and procedures for the procurement of paid advertising as covered by 44 U.S.C. 3702, 3703 and 5 U.S.C. 302 (b).
(a) The HCA or designee is the agency head for approving the publication of paid advertisements in newspapers under FAR 5.502(a).
(b) Authority to place advertisements in media other than newspapers must be granted in writing in advance by the HCA, or designee. No advertisement, notice, or proposal should be published prior to receipt of advance written approval for such publication by the HCA or designee, and no voucher or invoice for any such advertisement or publication will be paid unless there is presented, with the voucher or invoice, a copy of the written approval. Approval shall not be granted retroactively.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The HCA or designee is the agency head for the purposes of FAR 6.202.
(a) Justifications for contract actions over the contracting officer's approval dollar threshold shall be submitted to the BPC for concurrence before being forwarded to the bureau Competition Advocate for approval.
(b) Justifications requiring approval by the HCA, or a designee, shall be submitted to the {i} BPC and {ii} bureau Competition Advocate for concurrence before being forwarded to the HCA or designee.
(c) Justifications requiring approval by the SPE shall be submitted to the {i} BPC, {ii} the bureau Competition Advocate, and {iii} the HCA for concurrence before being forwarded to the SPE for approval.
(d) A class justification shall be approved in accordance with established bureau procedures and FAR 6.304(c).
(a) The Director, Office of Acquisition Management (OAM), Justice Management Division (JMD), is designated as the DOJ Competition Advocate.
(b) The HCA or designee for each bureau will appoint an official to be the bureau Competition Advocate. The bureau Competition Advocate shall be vested with the overall responsibility for competition activities within his or her bureau. The delegated bureau Competition Advocate must be at or above the level of the BPC organizationally.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
(a) The HCA is the agency head's designee for the purposes of FAR 7.103.
(b) The CAO may establish acquisition planning criteria and dollar approval thresholds for those bureaus that:
(1) Fail to allow ample time for conducting competitive acquisitions.
(2) Develop a pattern of awarding urgent requirements that generally restrict competition.
(3) Fail to identify identical or like requirements that, where appropriate, can be combined under one solicitation, and thereby miss opportunities to obtain lower costs through volume purchasing, reduced administrative costs in processing one contract action versus multiple actions, and standardizing goods and services.
In the case of bundled requirements, as defined in FAR 7.104(d)(2) and 7.107, the contracting officer shall consult with the bureau Small Business Technical Advisor (SBTA). After receiving concurrence from the bureau SBTA, the contracting officer will provide a copy of the proposed acquisition package to the Small Business Administration (SBA) Procurement Center Representative (PCR) and a copy to the DOJ Director, Office of Small Disadvantaged Business Unit (OSDBU), at least 30 days prior to the solicitation issuance. The SBA PCR is required to make any alternative recommendations to the contracting officer within 15 days after receipt of the package. If the SBA does not respond in this timeframe, the contracting officer may proceed as planned with the procurement.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The SPE is the agency head for purposes of FAR 8.405-3(a)(3)(ii).
Include the Federal Prison Industries (FPI) clearance numbers in solicitations and award documents.
The Director, Facilities and Administrative Services Staff (FASS), JMD, has been designated to serve as the central printing authority for the DOJ, for purposes of FAR 8.802(b).
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The HCA or designee is the agency head for the purposes of FAR 9.202(a)(1).
(a) The SPE is the agency head for purposes of suspension and debarment under FAR subpart 9.4, and serves as the Suspension and Debarment Official (SDO) for both procurement and non-procurement matters.
(b) Contracting activities shall consider recommending suspension or debarment of a contractor when cause is shown as listed under FAR 9.406-2 and 9.407-2.
(1) If a determination is made that available facts do not justify debarment or suspension, the file should be documented accordingly and no additional action is required.
(2) If the decision is made to recommend suspension or debarment of a contractor, in coordination with the activity's BPC and legal counsel, the bureau shall submit a memorandum to the SDO containing all relevant facts and analysis on which the recommendation is based. The submission also should include copies of all relevant documents.
(a) The SDO shall ensure the discharge of all agency responsibilities prescribed in FAR 9.404(c)(1) through (6), (8), and (9).
(b) The authority to establish procedures prescribed in FAR 9.404(c)(7) is delegated to the HCA, or designee.
The HCA or designee is the agency head for the purposes of FAR 9.405.
The HCA or designee is the agency head for the purposes of FAR 9.405-1.
The HCA or designee is the agency head for the purposes of FAR 9.405-2.
The HCA is the agency head for the purpose of waiving any general rule or procedure prescribed in FAR subpart 9.5. As prescribed in FAR 9.503, the authority delegated to the HCA to waive any general rule or procedure prescribed in FAR subpart 9.5 may not be delegated below the level of the HCA.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
(a) Market research must be conducted in accordance with DOJ sustainability policies and procedures in order to determine whether there are any sustainable acquisition standards applicable to the desired product or service.
(b) Ensure the statement of work includes sustainability requirements in accordance with JAR 2823.103, when applicable.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
(a) Consistent with the policy expressed in FAR 11.002(b), the metric system is the preferred system of weights and measures and shall be used in DOJ solicitations and contracts.
(b) When acquiring products or services, the requirements of FAR 11.002(d)(1) and DOJ sustainability policies and procedures are to be followed.
The HCA is the agency head for the purposes of FAR 11.103(a).
The HCA or designee is the agency head for the purposes of FAR 11.501(d).
The HCA or designee is the agency head for the purposes of FAR 11.603.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
Contracting Officers shall include the provisions and clauses at JAR 2852.212-4 in all solicitations and contracts for the acquisition of commercial items that require FAR 52.212-4, Contract Terms and Conditions—Commercial Items.
The HCA, or designee at a level at or above the BPC, is authorized to approve the contracting officer's request for waiver for an individual contract action submitted under FAR 12.302(c). The SPE is authorized to approve the contracting officer's request for wavier for a class of contracts submitted under FAR 12.302(c).
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75 (j) and 28 CFR 0.76(j).
The SPE is the agency head for the purposes of FAR 13.201(g)(1).
The HCA or designee is the agency head for the purposes of FAR 13.305-3(a).
Bureaus may use order forms other than the Standard Forms (SF) and Optional Forms (OF) identified in FAR 13.307. They may also include on those forms clauses suitable for the specific purchase, including tailored clauses, provided that proper procedures and all relevant limitations, documentation instructions, and required maintenance are followed.
DOJ contracting activities are authorized to use the fast payment procedures prescribed in FAR 13.4 solely for utility service payments.
Supplies or services may be acquired on the open market from local suppliers at the site of the work or usage point. Using the vendor's invoice, instead of issuing a Government purchase order, is authorized under the certified invoice procedure. Certified invoice procedures may not be used to place orders under established contracts.
(a) The certified invoice procedure for purchases may be used only under FAR part 13 and this part, subject to the following:
(1) The individual transaction amount does not exceed the micro-purchase threshold;
(2) Availability of sufficient funds is verified;
(3) A purchase order is not required by either the supplier or the Government;
(4) The vendor submits approved and appropriate invoices; and,
(5) The items purchased are domestic source end products, except as provided in FAR subpart 25.1.
(b) Using the certified invoice procedures does not eliminate the requirements in FAR part 13 that apply to purchases at or below the micro-purchase threshold.
(c) The chief of the contracting office, as defined in JAR 2802.101, may delegate the authority to use the certified invoice procedure. Each delegation must specify any limitations placed on the individual's use of these procedures, such as limits on the amount of each purchase, or limits on the commodities, or services being procured.
(d) Individuals using this purchasing technique shall require the supplier to immediately submit properly prepared invoices that itemize property or services furnished. Upon receiving the invoice, the individual making the purchase shall annotate the invoice with the date of receipt, verify the accuracy of the invoiced amount and verify on the invoice that the supplies and/or services have been received and accepted. If the invoice is valid and correct, the individual making the purchase shall sign the invoice indicating acceptance and immediately forward it to the appropriate administrative office.
(e) The administrative office must approve the invoice and, if approved, forward it to the Finance Office for payment. Before forwarding the invoice to the Finance Office, the administrative office shall place the following statement on the invoice, along with the accounting and appropriation data:
I certify that these goods and/or services were received on ________ (date) and accepted on ________ (date). Oral purchase was authorized and no confirming order has been issued.
Printed name or Typed Name and Title
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The HCA or designee is the agency head for the purposes of FAR 14.404-1(c), (e)(1), and (f).
(a) The authority to make determinations under paragraphs (a), (b), (c), and (d) of FAR 14.407-3 is delegated to the HCA, or designee at a level at or above the chief of the contracting office. The HCA or designee shall seek the advice of legal counsel before making any determinations.
(b) The following procedures shall be followed when submitting cases of mistakes in bids to the Comptroller General for an advance decision.
(1) Requests for advance decisions submitted to the Comptroller General in cases of mistakes in bids shall be made by the HCA, or designee.
(2) Requests for advance decisions shall be in writing, dated, signed by the requestor, addressed to the Comptroller General of the United States, General Accounting Office, Washington, D. C. 20548, and contain the following:
(i) The name and address of the party requesting the decision;
(ii) A statement of the question to be decided, a presentation of all relevant facts, and a statement of the requesting party's position with respect to the question; and,
(iii) Copies of all pertinent records and supporting documentation.
The authority to make determinations under FAR 14.407-4 is delegated to the HCA. The HCA may re-delegate this authority at a level at or above the chief of the contracting office. The determination must be coordinated with the contracting activity's legal counsel.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75 (j) and 28 CFR 0.76(j).
The HCA or designee is the agency head for the purposes of FAR 15.204(e).
The HCA or designee is the agency head for the purposes of FAR 15.303(a).
All requests for field pricing support shall be made by the contracting officer directly to the cognizant audit agency. In accordance with Attorney General Order 1931-94, a copy of the request for such services shall be sent to the OIG at the time it is mailed to the cognizant audit agency. A copy of each report received shall also be sent to the OIG. Requests for other audit assistance may be made to the Assistant Inspector General for Audits.
Each contracting activity shall designate a point of contact for the receipt and handling of unsolicited proposals. Generally, the official designated shall be the BPC or immediate subordinate.
To ensure against contracts between DOJ and prospective offers that would exceed the limits of advance guidance set forth in FAR 15.604 and potentially result in an unfair advantage to an offeror, the offeror of an unsolicited proposal must include the following warranty in any unsolicited proposal. Contracting officers receiving an unsolicited proposal without this warranty shall not process the proposal until the offeror is notified and given an opportunity to submit a proper warranty. If no warranty is provided in a reasonable time, the contracting officer shall reject the unsolicited proposal and notify the offeror of the rejection and the reason therefore. The warranty must be signed by a responsible management official of the proposing organization authorized to contractually obligate the organization.
This is to warrant that—
(a) This proposal has not been prepared under Government supervision;
(b) The methods and approaches stated in the proposal were developed by this offeror;
(c) Any contact with DOJ personnel has been with the limits of appropriate advance guidance set forth in FAR 15.604; and,
(d) No prior commitments were received from DOJ personnel regarding acceptance of this proposal.
The designated point of contact for each contracting activity shall provide for and coordinate receipt, review, evaluation, safeguarding, and final disposition of unsolicited proposals in accordance with FAR subpart 15.6.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75 (j) and 28 CFR 0.76(j).
The BPC or designee is the chief of the contracting office for the purposes of FAR 16.207-3(d).
(a) Justifications for exceptions to the fair opportunity process specified in FAR 16.505(b)(2) shall be approved in accordance with JAR 2806.304.
(b) In accordance with FAR 16.505(b)(8), the DOJ task order and delivery order ombudsman is the DOJ Competition Advocate.
(c) HCAs shall designate a bureau task order and delivery order ombudsman. This person may be the bureau Competition Advocate.
(d) Bureau ombudsmen shall review and resolve complaints from contractors concerning task or delivery orders placed by the bureau.
(e) Contractors not satisfied with the resolution of a complaint by a bureau ombudsman may request the DOJ ombudsman to review the complaint.
The BPC, or designee at a level at or above the chief of the contracting office, is the agency official authorized to approve a determination and finding prescribed in FAR 16.601(d)(1)(ii).
The limitations set forth in 2816.601 for time-and-materials contracts also applies to labor hour contracts.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j); and 28 CFR 0.76(j).
The SPE is the agency head for the purposes of FAR 17.104(b).
Deviation requests to exceed the 5-year limitations specified in FAR 17.204(e) require advance approval from—
(a) The HCA or designee for individual contracts; and
(b) The SPE for classes of contracts.
The HCA or designee is the agency head for the purposes of FAR 17.602(a).
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The SPE is the agency head for the purposes of FAR 19.505.
The SPE is the agency head for the purposes of FAR 19.810(c).
The HCA or designee is the agency head for the purposes of FAR 19.812(d).
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
Contracting officers shall insert the clause at JAR 2852.222-70, Domestic Violence, Sexual Assault, and Stalking, in every written solicitation when services will be performed in whole or in part on DOJ premises.
During contract performance, contractor requests for overtime exceeding the amount authorized in paragraph (a) of the clause at FAR 52.222-2, Payment for Overtime Premiums, must be approved at a level above the contracting officer. Such approval should be reflected by the signature of the approving official on the contracting officer's written determination made in accordance with FAR 22.103-4.
The authority to make the determination prescribed in FAR 22.302(c) is delegated to the HCA, or designee.
The contracting officer shall prepare and forward reports of violations under FAR 22.406-8(d)(1) to the HCA or designee at a level at or above the BPC. That official shall be responsible for processing the report in accordance with FAR 22.406-8(d)(2).
Any information furnished to the Department of Labor, as required by FAR 22.406-12(a), shall be submitted through the HCA, or designee.
The SPE is the agency head for the purposes of FAR 22.604-2(b)(1).
The SPE is the agency head for the purposes of FAR 22.803(c).
The SPE is the agency head for the purposes of FAR 22.807(a)(1).
The contracting officer shall insert the clause at 52.222-70, Contractor
All requests for waiver of the terms of FAR 52.222-35 pursuant to FAR 22.1310(a)(1)(ii) or (a)(2) shall be forwarded from the HCA or designee to Office of Acquisition Management (OAM), JMD, for review and approval by the Attorney General (AG).
The SPE is the agency head for the purposes of FAR 22.1310(a)(1)(ii) and (a)(2).
The SPE is the agency head for the purposes of FAR 22.1403(b).
The SPE is the agency head for the purposes of FAR 22.1408(a)(2).
The contracting officer shall refer to the DOJ Inspector General for investigation, under FAR 22.1503(e), any matters relating to that section.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The HCA or designee is the agency head for the purposes of executing the written determination not to purchase ENERGY STAR® or Federal Energy Management Program (FEMP)-designated products.
FAR clause 52.223-3 shall be included in solicitations and contracts that will require delivery of hazardous material as defined in FAR 23.301. In addition, the contracting officer shall insert the clause at JAR 2852.223-70, Unsafe Conditions Due to the Presence of Hazardous Material, in all such solicitations and contracts, where the contract will require the performance of services on Government-owned or Government-leased facilities.
(a)
(b)
(c)
(2)
(3)
The contracting officer is the approving official for justifications made pursuant to FAR 23.405(b)(2).
The HCA or designee is the agency head for the purposes of executing the written determination not to purchase EPEAT®-registered products.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The authority to make the determination prescribed in FAR 25.103(a) is delegated to the HCA, or designee.
The authority to make the determinations prescribed in FAR 25.105(a)(1) is delegated to the HCA, or designee.
The authority to make the determinations prescribed in FAR 25.202(a)(1) is delegated to the HCA, or designee.
The HCA, or designee at a level at or above the BPC, is the agency official authorized to make the determination in accordance with FAR 25.204(b) that using a particular domestic construction material would unreasonably increase the cost of the acquisition or would be impracticable.
Potentially fraudulent noncompliance under FAR 25.206(c)(4) shall be referred to the OIG for investigation.
The HCA, or designee at a level at or above the BPC, is the agency official authorized to make determinations under FAR 25.1001(a)(2)(iii).
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The SPE is the agency head for the purposes of FAR 27.303(e)(4).
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The HCA or designee is the agency head for the purposes of authorizing class waivers in accordance with FAR 28.101-1(c).
In accordance with FAR 28.106-6(c), the HCA, or designee at a level at or above the BPC, is the agency official authorized to furnish the certified copy of the bond and the contract.
All assets pledged by individual sureties must be eligible obligations as defined in 31 CFR part 225, “Acceptable Collateral for Pledging to Federal Agencies.” This collateral will be placed in the custody of the U.S. Treasury, with a Federal Reserve Bank acting as the depositary until the completion of the obligation.
The SDO is the agency head for the purposes of FAR 28.203-7(a).
Under cost-reimbursement contracts, the contractor, before buying insurance under a group insurance plan, shall submit the plan to the contracting officer for review and approval. During review, the contracting officer may utilize all sources of information available such as audit, industry practices, etc., to determine if acceptance of the group insurance plan is in the Government's best interest.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
Generally, purchases and leases made by the Federal Government are immune from State and local taxation.
(a) It is DOJ policy that DOJ contracts shall not contain clauses expressly designating prime contractors as agents of the Government for the purpose of avoiding State and local taxes.
(b) A DOJ contracting activity may request to the CAO, through the HCA, that a contractor be considered an agent of the Government for the purpose of claiming immunity from State and local sales and use taxes. The CAO will review such requests to ensure compliance with DOJ policy and applicable law. Each case forwarded will be reviewed by the HCA or designee for approval before referral to the CAO.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The SPE is the agency head for the purposes of FAR 30.201-5. Pursuant to FAR 30.201-5, this authority may not be
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
(a) The SPE is the official authorized to grant individual deviations from the cost principles of FAR part 31.
(b) Requests for class deviations from the cost principles set forth in FAR part 31 will be forwarded through the SPE prior to submission to the Civilian Agency Acquisition Council (CAAC).
(a) DOJ and bureau contracting officers are encouraged to negotiate advance agreements concerning the treatment of special or unusual costs to avoid possible subsequent disputes or disallowance of costs based upon unreasonableness or nonallowability. All such agreements shall be negotiated in accordance with FAR 31.109, prior to the contractor incurring such costs.
(b) All determinations required by this subpart shall be reviewed and approved at a level above the contracting officer prior to negotiation of the proposed agreement. The approved determination shall be placed in the contract file.
(c) Advance agreements will be signed by both the contractor and the contracting officer, and made a part of the contract file. Copies of executed advance agreements will be distributed to the cognizant audit office, when applicable.
The HCA or designee is the agency head for the purposes FAR 31.205-6(g)(6).
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The SPE is the agency head for the purposes of FAR 32.006-1.
The SPE is the “remedy coordination official” for the purposes of FAR 32.006-2.
DOJ personnel shall immediately report, in writing, to the contracting officer and the OIG any apparent or suspected contractor request for advance, partial, or progress payments based on fraud.
The SPE is the agency head for the purposes of FAR 32.006-4.
The HCA, or designee at a level at or above the BPC, is the official authorized to approve unusual contract financing as set forth in FAR 32.114.
The HCA or designee is the agency head for the purposes of FAR 32.201.
(a) The authority to make the determinations prescribed in FAR 32.402 and sign written determinations and findings with respect to making advance payments is vested in the HCA or designee.
(b) Prior to awarding a contract which contains provisions for making advanced payments, the contract terms and conditions concerning advance payments shall be approved at a level above the contracting officer.
(c) In ensuring that all FAR and agency requirements are met, the contracting officer shall coordinate with the activity that is to provide contract financing for advance payments, the bureau's disbursing or finance office, or the Treasury Department, as appropriate.
In accordance with FAR 32.407(d), advance payments may be made on an interest free basis. A determination to make such interest free advance payments, and the circumstance permitting interest free advance payments, shall be set forth in the original determination and findings and be approved in accordance with JAR 2832.402.
Before taking any of the actions prescribed in FAR 32.502-2, the contracting officer shall obtain advice
The HCA or designee is the approving official for any action recommended under FAR 32.503-6. Upon approval, the contracting officer shall request the finance office to suspend or reduce payments.
The HCA or designee is the agency head for the purposes of FAR 32.703-3(b).
The HCA or designee is responsible for promulgating policies and procedures to implement FAR 32.9.
When the clause at FAR 52.232-34, Payment by Electronic Funds Transfer (EFT)—Other than System for Award Management, is required, the contracting officer may insert in paragraph (b)(1) of the clause a particular time after award, such as a fixed number of days, or an event such as the submission of the first request for payment, to establish the point at which contractors' EFT information shall be provided.
28 U.S.C. 510; 40 U.S.C 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
(a)
(1) The APO will be at an organizational level above that of the contracting officer, will be knowledgeable about the acquisition process in general, and will not have had any previous personal involvement or programmatic interest in the procurement that is the subject of the protest.
(2) The departmental or bureau Competition Advocate may serve as the APO.
(b)
(c)
(a) This part prescribes policies and procedures for processing protests to DOJ in accordance with FAR 33.103 and Executive Order 12979, Agency Procurement Protests, dated October 25, 1995.
(b) Contracting officers and contractors are encouraged to use their best efforts to resolve concerns outside of the protest process through frank and open discussion as required by FAR 33.103(b) or through alternative dispute resolution techniques where appropriate.
(c) Responsibilities are as follows:
(1)
(ii) When serving as the Deciding Official, decide the protest using the procedures in this subpart and FAR 33.103(d)(2).
(iii) If the protestor requests that the protest be decided at a level above the contracting officer, the contracting officer shall ensure that the Agency Protest Official, once designated, receives a copy of the protest and any other materials the protestor has provided to the contracting officer in support of the protest.
(2)
(a) The filing time frames in FAR 33.103(e) apply. An agency protest is filed when the protest is received at the location the solicitation designates for serving protests.
(b) Only interested parties may file a protest.
(c) An interested party filing an agency protest has the choice of requesting either that the contracting officer or an individual above the level of the contracting officer decide the protest.
(d) In addition to the information required by FAR 33.103(d)(2), the protest shall:
(1) Indicate that it is a protest to the agency.
(2) Be filed with the contracting officer or other official designated to receive protests.
(3) State whether the protestor chooses to have the contracting officer or an individual above the level of the contracting officer decide the protest. If the protest is silent on this matter, the contracting officer will decide the protest.
(4) Indicate whether the protestor prefers to make an oral or written presentation of arguments in support of the protest to the Deciding Official.
(e) Upon receipt of a protest by the agency, the contracting officer, even when not serving as the Deciding Official, will notify other vendors competing in the procurement of the protest, any stay of award or suspension of performance, and/or any determination under FAR 33.103(f)(1) or (3) if and when made.
(f) Intervenors to the protest are not permitted.
(g) The decision by the Agency Protest Official is an alternative to a decision by the contracting officer on a protest. The Agency Protest Official will not consider appeals from a contracting officer's decision on an agency protest and a decision by the Agency Protest Official is final and not appealable.
(h) The protestor has only one opportunity to support or explain the
(i) A protestor may represent itself or be represented by legal counsel. DOJ will not reimburse the protester for any legal fees or costs related to the agency protest.
(j) If an agency protest is received before contract award, the contracting officer shall not make award unless the HCA or designee makes a determination to proceed under FAR 33.103(f)(1). Similarly, if an agency protest is filed within ten (10) days after award or within 5 days after a debriefing date has been offered to the protester under a timely debriefing request under FAR 15.505 or 15.506, whichever is later, the contracting officer shall suspend contract performance unless the HCA or designee makes a determination to proceed under FAR 33.103(f)(3). Any stay of award or suspension of performance remains in effect until the agency protest is decided, dismissed, or withdrawn.
(k) The Deciding Official's decision may be oral or written. If oral, the Deciding Official shall send a confirming letter after the decision using a means that allows proof of receipt, including electronic mail. The letter shall:
(1) State whether the protest was denied, sustained, or dismissed;
(2) Indicate the date the decision was provided; and
(3) Provide the rationale for the decision.
(l) If the Deciding Official sustains the protest, relief may consist of any of the following:
(1) Termination of the contract for convenience or cause.
(2) Recompeting the requirement.
(3) Amending the solicitation.
(4) Refraining from exercising contract options.
(5) Reevaluating the offers or bids and making a new award determination.
(6) Other action that the Deciding Official determines is appropriate.
(m) Proceedings on an agency protest shall be dismissed if a protest on the same or similar basis is filed with a protest forum outside of DOJ.
The SPE is the agency head for the purposes of FAR 33.203(b).
Contracting officers shall report suspected fraudulent claims to the OIG for investigation.
The Civilian Board of Contract Appeals (CBCA) hears and decides contract disputes originating from DOJ.
It is DOJ's goal to resolve contract disputes before the issuance of a contracting officer's final decision under the Contract Disputes Act. Therefore, contracting officers will consider all possible means of reaching a negotiated settlement consistent with the Government's best interest, before issuing a final decision on a contractor claim under the process outlined in FAR 33.206 through 33.211.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The Small Business and Federal Procurement Competition Enhancement Act of 1984 allows an executive agency to establish a dollar threshold for the designation of a major system, in accordance with Public Law 98-577. Dollar thresholds for a major system under Office of Management and Budget (OMB) Circular A-109 are designated in this section.
(a)
(b)
(2) By lease, when the annual rental charges, including basic services (
(3) By transfer from another agency at no cost when the assessed value of the property exceeds $12 million.
(c)
(d)
(e)
(a) The SPE is the agency head for the purposes of FAR 34.003(a).
(b) The CAO is the agency head for the purposes of FAR 34.003(c).
The CAO is the agency head for the purposes of FAR 34.005-6.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
For construction projects over $10,000,000, present the magnitude in ranges as follows:
(a) Between $10,000,001 and $25,000,000;
(b) Between $25,000,001 and $100,000,000;
(c) Between $100,000,001 and $250,000,000;
(d) Between $250,000,001 and $500,000,000; and
(e) Over $500,000,000.
The HCA or designee is the agency head for purposes of FAR 36.602-1(b).
The HCA or designee is the agency head for purposes of FAR 36.602-4(a).
(a) The short selection process, described in FAR 36.602-5, is authorized for use in DOJ contracts not expected to exceed the simplified acquisition threshold.
(b) The HCA or designee is the agency head for purposes of FAR 36.602-5(b)(2).
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The HCA or designee is the agency head for purposes of FAR 37.106(b).
The HCA or designee is the agency head for purposes of FAR 37.204.
The HCA or designee or designee is the agency head for purposes of FAR 37.503.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
DOJ's Chief Information Officer (CIO) and SPE are responsible for issuing policies and procedures to manage the agency information technology (IT) acquisition process.
Contracts involving DOJ Information and Information Systems shall comply with the security requirements prescribed in FAR 39.102 and all applicable DOJ security requirements, including without limitation all DOJ Policy Statements and DOJ Policy Instructions established under the DOJ Acquisition Management Order relating to the Management of Risk of DOJ Information and Information Systems.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The HCA or designee is the agency head for the purposes of FAR 41.201(d)(2)(i) and (d)(3).
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The HCA or designee is the agency head for the purposes of FAR 42.602(a).
The HCA or designee is the agency head for the purposes of FAR 42.703-2(b).
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The contractor's records for Government-furnished property may be kept as a separate account in the bureau's internal property management system, in which case the contracting officer or formally designated property administrator shall serve as custodian of the account.
(a) In compliance with FAR 45.105, by January 31 of each year, DOJ contractors shall furnish the cognizant contracting officer an annual report of the DOJ property for which they are accountable as of the end of the calendar year.
(b) By March 1 of each year, bureaus shall submit to the Facilities and Administrative Services Staff (FASS), JMD, a summary report of agency property furnished under each contract as of the end of the calendar year. The report shall include a listing of Government-furnished property for all contracts for which the bureau maintains the official Government records.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
Bureaus shall prescribe procedures and instructions for the use, preparation, and distribution of material inspection and receiving reports and commercial shipping document/packing lists to evidence Government inspection (FAR 46.401) and acceptance (FAR 46.501).
The use of a warranty in an acquisition shall be approved at a level above the contracting officer.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
The HCA is the agency head for purposes of FAR 48.102(a).
The HCA or designee is the agency head for purposes of FAR 48.201(a)(6).
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
If the contracting officer has reason to suspect fraud or other criminal conduct related to the settlement negotiations of a terminated contract, the contracting officer shall discontinue the negotiations and report the facts supporting the suspicion through the HCA or designee to the OIG.
The HCA or designee may establish procedures for the review and approval of settlement agreements at a level above the contracting officer. In addition, all proposed termination settlements shall be reviewed by legal counsel.
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and 28 CFR 0.76(j).
This part provides the text of provisions and clauses which are unique to DOJ or supplement the FAR.
JAR provisions and clauses in this part may be incorporated in solicitations and contracts by reference.
This subpart sets forth the text of all DOJ provisions and clauses. It also cross-references to the location in the JAR that prescribes the use of each provision and clause.
As prescribed in JAR 2801.604, insert the following clause:
(a) Mr./Ms. (Name) of (Organization), (Address), (Area Code & Telephone No.), is hereby designated to act as Contracting Officer's Representative (COR) under (contract #), for the period of (specify the performance period of the contract that the designation covers).
(b) Performance of work under this contract is subject to the technical direction of the COR identified above, or another representative designated in writing by the Contracting Officer. The term “technical direction” includes, without limitation, the following:
(i) Receiving all deliverables;
(ii) Inspecting and accepting the supplies or services provided in accordance with the terms and conditions of this contract;
(iii) Clarifying, directing, or redirecting the contract effort, including shifting work between work areas and locations, filling in details, or otherwise serving to accomplish the contractual statement of work to ensure the work is accomplished satisfactorily;
(iv) Evaluating performance of the Contractor; and
(v) Certifying all invoices/vouchers for acceptance of the supplies or services furnished for payment.
(c) The COR does not have the authority to issue direction that:
(i) Constitutes a change of assignment or work outside the contract specification/work statement/scope of work.
(ii) Constitutes a change as defined in the clause entitled “Changes” or other similar contract term.
(iii) Causes, in any manner, an increase or decrease in the contract price or the time required for contract performance;
(iv) Causes, in any manner, any change in a term, condition, or specification or the work statement/scope of work of the contract;
(v) Causes, in any manner, any change or commitment that affects price, quality, quantity, delivery, or other term or condition of the contract or that, in any way, directs the contractor or its subcontractors to operate in conflict with the contract terms and conditions;
(vi) Interferes with the contractor's right to perform under the terms and conditions of the contract;
(vii) Directs, supervises, or otherwise controls the actions of the Contractor's employees or a Subcontractor's employees.
(d) The Contractor shall proceed promptly with performance resulting from the technical direction of the COR. If, in the opinion of the Contractor, any direction by the COR or the designated representative falls outside the authority of (b) above and/or within the limitations of (c) above, the Contractor shall immediately notify the Contracting Officer.
(e) Failure of the Contractor and Contracting Officer to agree that technical direction is within the scope of the contract is a dispute that shall be subject to the “Disputes” clause and/or other similar contract term.
(f) COR authority is not re-delegable.
As prescribed in JAR 2803.908-70, insert the following provision:
The provisions of this Non-Disclosure Agreement (NDA) are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive Order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive Orders and statutory provisions are incorporated into this agreement and are controlling.
As prescribed in JAR 2803.908-71, insert the following provision:
(1) The signatory will not disclose any classified information received in the course of such intelligence or intelligence-related activity unless specifically authorized to do so by the United States Government; and
(2) The Non-Disclosure Agreement (NDA) does not bar disclosures to Congress, or to an authorized official of an executive agency or the Department of Justice, which are essential to reporting a substantial violation of law.
As prescribed in JAR 2812.301, insert the following provision:
When a commercial item is contemplated (using FAR Part 12 procedures or otherwise) and the contract will include FAR 52.212-4, the following replaces subparagraph (g)(2); paragraph (h); subparagraph (i)(2); paragraph (s); and paragraph (u), Unauthorized Obligations, of the basic FAR clause, and adds paragraph (w), as follows:
(g)(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment act regulations at 5 CFR part 1315, as modified by subparagraph (i)(2),
(h)
(i)(2)
(s)
(1) The schedule of supplies/services.
(2) The Assignments, Payments, Invoice, Other Compliances, and Compliance with Laws Unique to Government Contracts provisions of the basic FAR clause at 52.212-4, and the Unauthorized Obligations and Contractor's Commercial Supplier Agreements—Unenforceable Clauses provisions of JAR 2852.212-4.
(3) FAR 52.212-5.
(4) Other paragraphs of the basic FAR clause at 52.212-4, with the exception of paragraph (o), Warranty, and those paragraphs identified in this deviation of 52.212-4.
(5) Addenda to this solicitation, contract, or order, including contractor's Commercial supplier agreements incorporated into the contract.
(6) Solicitation provisions if this is a solicitation.
(7) Paragraph (o), Warranty, of the basic FAR clause at 52.212-4.
(8) The Standard Form 1449.
(9) Other documents, exhibits, and attachments.
(10) The specification.
(u)
(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract or order is subject to any Commercial supplier agreement that includes any language, provision, or clause requiring the
(i) Any such language, provision, or clause is unenforceable against the Government.
(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other similar mechanism (
(iii) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement and have no effect.
(2) Paragraph (u) (1) of this clause does not apply to indemnification by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.
(w)
(1) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the U.S. Government, the following shall apply:
(i)
(ii)
(iii)
(A) Any language, provision, or clause purporting to subject the U.S. Government to the laws of any U.S. state, territory, district, or municipality, or the laws of a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted and shall have no effect.
(B) Any language, provision, or clause requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted and shall have no effect.
(C) Any language, provision, or clause prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted and shall have no effect.
(iv)
(v)
(vi)
(A) After award, the contractor may unilaterally revise terms if they are not material. Material terms are defined as:
(1) Terms that change Government rights or obligations;
(2) Terms that increase Government prices;
(3) Terms that decrease the overall level of service; or
(4) Terms that limit any other Government right addressed elsewhere in this contract.
(B) For revisions that materially change the terms of the contract, the revised commercial supplier agreement must be incorporated into the contract using a bilateral modification.
(C) Any agreement terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provisions of this contract shall not be enforceable against the Government, and the Government shall not be deemed to have consented to them.
(vii)
(viii)
(ix)
(x)
(xi)
“(A) If Contractor reasonably believes that the Government has violated the terms of this agreement with regard to the restrictions on authorized use and/or the number of authorized users, upon written request from Contractor, including an explanation of the basis for the request, DOJ will provide a redacted version of the Government's most recent Security Assessment and Authorization package (SAA) to Contractor on a confidential basis, so that Contractor may reasonably verify the Government's compliance with its obligations under this agreement. Contractor understands and agrees that the Government will remove or redact any information from the SAA that it reasonably believes may compromise (a) the security of the Government's information technology environment; (b) the confidentiality of any third-party proprietary or confidential information; (c) any confidential, sensitive law enforcement information; and (d) any other information that the Government believes may compromise a past, current, or prospective investigation, prosecution, or litigation. Notwithstanding the preceding, and subject to the Government's policies and procedures for such review, including but not limited to complying with all Government security requirements prior to being granted access to the Government's facilities, including the execution of appropriate confidentiality and/or non-disclosure agreements, the Government will arrange, upon Contractor's written request, for Contractor to view an un-redacted version of the SAA on Government premises. Contractor understands that Contractor will be provided a copy of the un-redacted SAA on Government premises only and that no un-redacted copy of the SAA, or any medium containing information relating to it, will be permitted to be removed from Government premises.
(B) The Contractor also understands and agrees that the Contractor shall make a request under this paragraph no more than on an annual basis and only during the period of the contract, and that any activities performed by Contractor under this clause will be performed at Contractor's expense, without reimbursement by the Government.
(C) Discrepancies found with regard to the restrictions on authorized use and/or the number of authorized users may result in a charge by Contractor to the Government. Any resulting invoice must comply with the proper invoicing and payment requirements specified in the contract. This charge, if disputed by the Government, will be resolved through the Disputes clause at 52.212-4(d); no payment obligation shall arise on the part of the Government until the conclusion of the dispute process.”
(xii)
(xiii)
(xiv)
(A) During the term of this contract or order, either party may identify information as “confidential information,” and there shall be no disclosure, dissemination, or publication of any such information except to the extent required for the performance of this contract or order and otherwise provided in this clause or by statute or regulation. Specifically, the parties agree that the party receiving confidential information may only disclose such information to its employees and contractors on a “need-to-know” basis to carry out the obligations of this contract or order, and that subcontractors performing under this Agreement are subject to the same stipulations provided in this provision. The parties also agree that this provision shall survive the termination of this contract or order, and any confidential information obtained or received which comes within these restrictions shall remain confidential, provided that the obligation to treat information as confidential shall not apply to information which is or becomes publicly available through no improper action of the receiving party; is or comes to be in the receiving party's possession independent of its relationship with the disclosing party; is developed by or becomes known to the receiving party without use of any confidential information of the disclosing party; or is obtained rightfully from a third party not bound by an obligation of confidentiality. Additionally, nothing in this contract or order shall restrict disclosure by the receiving party pursuant to any applicable law, including but not limited to the Freedom of Information Act, 5 U.S.C. 552,
(B) The Government considers and hereby identifies as confidential any and all information related to any inquiries and/or searches performed by the Government or by contractor at the Government's direction under this contract or order, including the subject of any such inquiry or search and any and all search terms, regardless of whether provided in writing or orally to Contractor, and Contractor agrees that it may only disclose such information to its employees and contractors on a “need-to-know” basis to carry out the obligations of this contract or order and that it will not share, reveal, divulge, disclose, disseminate, or publicize any such information to any third party except as provided in this provision without the prior written approval of the Contracting Officer. Contractor also understands and agrees that any subcontractors performing under this contract or order are subject to the same stipulations and that Contractor may be held responsible for any violations of confidentiality by a subcontractor.
(C) These provisions are consistent with and do not supersede, conflict with, or otherwise alter an employee's obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by Executive orders and statutory provisions relating to whistleblower protection are incorporated into this contract and are controlling.
(D) The Government may share the terms, conditions and prices set forth in this Order with, and provide a copy of the Order to, other Executive branch agencies of the U.S. Government, provided that the Government shall ensure that other Executive branch agencies to which it provides such information will be required to treat all such information consistent with terms and conditions set forth in this Order.
(E) Notwithstanding anything in this agreement, the Government may retain any confidential information as required by law, regulation, or its internal document retention procedures for legal, regulatory, or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of this Order.
(xv)
(xvi)
(2) If any language, provision, or clause of this agreement conflicts or is inconsistent with the preceding paragraph (w)(1), the language, provisions, or clause of paragraph (w)(1) shall prevails to the extent of such inconsistency.
As prescribed in JAR 2822.101-70, insert the following clause:
(a) It is DOJ policy to enhance workplace awareness of and safety for victims of domestic violence, sexual assault, and stalking. This policy is summarized in “
Vendor agrees, upon contract award, to provide notice of this Policy Statement, including at a minimum the above-listed URL, to all Vendor employees and employees of subcontractors who will be assigned to work on DOJ premises.
(b) Upon contract award, DOJ will provide the Contractor with the name and contact information of the point of contact for victims of domestic violence, sexual assault, and stalking for the component or components where the Contractor will be performing. The Contractor agrees to inform its employees and employees of subcontractors, who will be assigned to work on DOJ premises, with the name and contact information of the point of contact for victims of domestic violence, sexual assault, and stalking.
As prescribed in JAR 2823.303-70, insert the following clause:
(a) “Unsafe condition” as used in this clause means the actual or potential exposure of Contractor or Government employees to a hazardous material.
(b) “Hazardous Material” as used in this clause includes any material defined as hazardous under the latest version of Federal Standard No. 313 (including revisions adopted during the term of the contract), any other potentially hazardous material requiring safety controls, or any other material or working condition designated as hazardous by the Contracting Officer's Representative (COR).
(c) The Occupational Safety and Health Administration (OSHA) is responsible for issuing and administering regulations that require Contractors to apprise its employees of all hazards to which they may be exposed in the course of their employment; proper conditions and precautions for safe use and exposure; and related symptoms and emergency treatment in the event of exposure.
(d) Prior to commencement of work, Contractors are required to inspect for and report to the Contracting Officer the presence of, or suspected presence of, any unsafe condition including asbestos or other hazardous materials or working conditions in areas in which they will be working.
(e) If during the performance of the work under this contract, the Contractor or any of its employees, or subcontractor employees, discovers the existence of an unsafe condition, the Contractor shall immediately notify the Contracting Officer, or designee (with written notice provided not later than three (3) working days thereafter), of the existence of an unsafe condition. Such notice shall include the Contractor's recommendations for the protection and the safety of Government, Contractor and subcontractor personnel and property that may be exposed to the unsafe condition.
(f) When the Government receives notice of an unsafe condition from the Contractor, the parties will agree on a course of action to mitigate the effects of that condition and, if necessary, the contract will be amended. Failure to agree on a course of action will constitute a dispute under the Disputes clause of this contract.
(g) Nothing contained in this clause shall relieve the Contractor or subcontractors from complying with applicable Federal, State, and local laws, codes, ordinances and regulations (including the obtaining of licenses and permits) in connection with hazardous material including but not limited to the use, disturbance, or disposal of such material.
As prescribed in JAR 2833.102(d), insert a clause substantially as follows:
(a) The following definitions apply in this provision:
(1) “Agency Protest Official” (APO) means the Deciding Official for a procurement protest filed with a contracting activity of DOJ when the contracting officer will not be the Deciding Official because of the protestor's election under JAR 2833.103(b)
(2) “Deciding Official” means the official who will review and decide a procurement protest filed with the agency. The Deciding Official will be the contracting officer unless the protestor requests pursuant to JAR 2833.103(b) that the protest be decided by an individual above the level of the contracting officer, in which case the HCA will designate an APO to serve as the Deciding Official.
(3) “Interested Party” means an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.
(b) Only interested parties may file a protest.
(c) An interested party filing a protest with the DOJ has the choice of requesting either that the Contracting Officer or the APO decide the protest.
(d) A protest filed directly with the DOJ shall:
(1) Indicate that it is a protest to DOJ.
(2) Be filed with the Contracting Officer.
(3) State whether the protestor chooses to have the Contracting Officer or the Agency Protest Official decide the protest. If the protestor is silent on this matter, the Contracting Officer will decide the protest.
(4) Indicate whether the protestor prefers to make an oral or written presentation of arguments in support of the protest to the deciding official.
(5) Include the information required by FAR 33.103(d)(2):
(i) Name, address, facsimile number and telephone number of the protestor.
(ii) Solicitation or contract number.
(iii) Detailed statement of the legal and factual grounds for the protest, to include a description of resulting prejudice to the protestor.
(iv) Copies of relevant documents.
(v) Request for a ruling by the agency.
(vi) Statement as to the form of relief requested.
(vii) All information establishing that the protestor is an interested party for the purpose of filing a protest.
(viii) All information establishing the timeliness of the protest.
(e) The decision by the APO is an alternative to a decision by the Contracting Officer. The APO will not consider appeals from the Contracting Officer's decision on an agency protest and a decision by the APO is final and not appealable.
(f) The Deciding Official may conduct a scheduling conference. The scheduling conference, if conducted, will establish deadlines for oral or written arguments in support of the agency protest and for agency officials to present information in response to the protest issues. The deciding official may hear oral arguments in support of the agency protest at the same time as the scheduling conference, depending on availability of the necessary parties.
(g) Oral conferences may take place either by telephone or in person.
(h) The protestor has only one opportunity to support or explain the substance of its protest. DOJ procedures do not provide for any discovery. The deciding official may request additional information from the agency or the protestor. The deciding official will resolve the protest through informal presentations or meetings to the maximum extent practicable.
(i) A protestor may represent itself or be represented by legal counsel. The DOJ will not reimburse the protester for any legal fees related to the agency protest.
(j) The DOJ will stay award or suspend contract performance in accordance with FAR 33.103(f), unless the contract award is justified, in writing, for urgent and compelling reasons or is determined, in writing, to be in the best interest of the Government. The justification or determination shall be approved at a level above the Contracting Officer. The stay or suspension, unless over-ridden, remains in effect until the protest is decided, dismissed, or withdrawn.
(k) The deciding official will make a best effort to issue a decision on the protest within thirty-five (35) days after the filing date. The decision shall be written, and provided to the protestor using a method that provides for evidence of receipt.
(l) The DOJ may dismiss or stay proceedings on an agency protest if a protest on the same or similar basis is filed with a forum outside DOJ.
The following appendix will not appear in the Code of Federal Regulations.