Office of Partnerships and Public Engagement
Rural Utilities Service
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Engineers Corps
Navy Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
Indian Affairs Bureau
Antitrust Division
National Endowment for the Arts
Federal Aviation Administration
Federal Highway Administration
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final determination.
The Energy Policy and Conservation Act, as amended (“EPCA”), prescribes energy conservation standards for various consumer products and certain commercial and industrial equipment, including metal halide lamp fixtures (“MHLFs”). EPCA also requires the U.S. Department of Energy (“DOE”) to periodically determine whether more-stringent, standards would be technologically feasible and economically justified, and would result in significant energy savings. In this final determination, DOE has determined that the energy conservation standards for MHLFs do not need to be amended because they are not economically justified.
The effective date of this final determination is November 24, 2021.
The docket for this rulemaking, which includes
The docket web page can be found at
For further information on how to review the docket, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
Dr. Stephanie Johnson, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 287-1943. Email:
Ms. Kathryn McIntosh, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-2002. Email:
Title III, Part B
EPCA established initial standards for MHLFs. (42 U.S.C. 6295(hh)(1)(A)) EPCA directed the U.S. Department of Energy (“DOE”) to conduct a review of the statutory standards to determine whether they should be amended, and a subsequent review to determine if the standards then in effect should be amended. (42 U.S.C. 6295(hh)(2) and (3)) DOE conducted the first review of MHLF energy conservation standards and published a final rule amending standards on February 10, 2014. 79 FR 7746.
DOE analyzed MHLFs subject to standards specified in 10 CFR 431.326(c). DOE first analyzed the technological feasibility of more efficient MHLFs. For those MHLFs for which DOE determined higher standards to be technologically feasible, DOE estimated energy savings that could result from potential energy conservation standards by conducting a national impacts analysis (“NIA”). DOE evaluated whether higher standards would be cost effective by conducting life-cycle cost (“LCC”) and payback period (“PBP”) analyses, and estimated the net present value (“NPV”) of the total costs and benefits experienced by consumers.
Based on the results of these analyses, summarized in section V of this document, DOE has determined that current standards for metal halide lamp fixtures do not need to be amended because more stringent standards would not be cost-effective (and by extension, would not be economically justified).
The following section briefly discusses the statutory authority underlying this final determination, as well as some of the relevant historical background related to the establishment of standards for MHLFs.
EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part B of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. These products include MHLFs, the subject of this document. (42 U.S.C. 6292(a)(19)) EPCA, as amended by the Energy Independence and Security Act of 2007 (Pub. L. 110-140, EISA 2007), prescribed energy conservation standards for this equipment. (42 U.S.C. 6295(hh)(1)) EPCA directed DOE to conduct two rulemaking cycles to determine whether to amend these standards. (42 U.S.C. 6295(hh)(2)(A) and (3)(A)) DOE published a final rule amending the standards on February 10, 2014 (“2014 MHLF final rule”). 79 FR 7746. Under 42 U.S.C. 6295(hh)(3)(A), the agency must conduct a second review to determine whether current standards should be amended and publish a final rule. This second MHLF standards rulemaking was initiated on July 1, 2019 through the publication of a request for information (“RFI”) document in the
The energy conservation program under EPCA consists essentially of four parts: (1) Testing, (2) labeling, (3) the establishment of Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).
Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption in limited instances for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. (
Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product. (42 U.S.C. 6295(o)(3)(A) and 42 U.S.C. 6295(r)) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c) and 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted pursuant to EPCA. (42 U.S.C. 6295(s)) The DOE test procedures for MHLF appear at 10 CFR 431.324.
In making a determination that the standards do not need to be amended, DOE must evaluate under the criteria of 42 U.S.C. 6295(n)(2) whether amended standards (1) will result in significant conservation of energy, (2) are technologically feasible, and (3) are cost effective as described under 42 U.S.C. 6295(o)(2)(B)(i)(II). (42 U.S.C. 6295(m)(1)(A) and 42 U.S.C. 6295(n)(2)) Under 42 U.S.C. 6295(o)(2)(B)(i)(II), an evaluation of cost effectiveness requires DOE to consider savings in operating costs throughout the estimated average life of the covered product in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered products which are likely to result from the imposition of the standard.
DOE is publishing this document to satisfy EPCA's requirement under 42 U.S.C. 6295(hh)(3)(A) to complete a second rulemaking for MHLFs and to satisfy the 6-year lookback provision at 42 U.S.C. 6295(m)(1).
In the 2014 MHLF final rule, DOE prescribed the current energy conservation standards for MHLFs manufactured on or after February 10, 2017. 79 FR 7746. These standards are set forth in DOE's regulations at 10 CFR 431.326 and are specified in Table II.1.
As described in section II.A, EPCA, as amended by Public Law 110-140, EISA 2007, prescribed energy conservation standards for MHLFs. (42 U.S.C. 6295(hh)(1)) EPCA directed DOE to conduct two rulemaking cycles to determine whether to amend these standards. (42 U.S.C. 6295(hh)(2)(A) and (3)(A)) DOE completed the first of these rulemaking cycles in 2014 by adopting amended performance standards for MHLFs manufactured on or after February 10, 2017. 79 FR 7746. The current energy conservation standards are located in 10 CFR part 431. See 10 CFR 431.326 (detailing the applicable energy conservation standards for different classes of MHLFs). The currently applicable DOE test procedures for MHLFs appear at 10 CFR 431.324. Under 42 U.S.C. 6295(hh)(3)(A), the agency is instructed to conduct a second review of its energy conservation standards for MHLFs and publish a final rule to determine whether to amend those standards. DOE initiated the second MHLF standards rulemaking by publishing the July 2019 RFI and subsequently, DOE published the August 2020 NOPD to support this rulemaking requirement. 84 FR 31232; 85 FR 47472.
DOE received five comments in response to the August 2020 NOPD from the interested parties listed in Table II.2
A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record.
DOE developed this final determination after considering oral and written comments, data, and information from interested parties that represent a variety of interests.
When evaluating and establishing energy conservation standards, DOE divides covered products into product classes by the type of energy used or by capacity or other performance-related features that justify differing standards. In making a determination whether a performance-related feature justifies a different standard, DOE must consider such factors as the utility of the feature to the consumer and other factors DOE determines are appropriate. (42 U.S.C. 6295(q)) This final determination covers metal halide lamp fixtures defined as light fixtures for general lighting application designed to be operated with a metal halide lamp and a ballast
EPCA sets forth generally applicable criteria and procedures for DOE's adoption and amendment of test procedures. (42 U.S.C. 6293) Manufacturers of covered products must use these test procedures to certify to DOE that their product complies with energy conservation standards and to quantify the efficiency of their product. DOE's current energy conservation standards for MHLFs are expressed in terms of the efficiency of the ballast contained within the fixture. (10 CFR 431.326)
DOE established an active mode and standby mode power test method for MHLFs in a final rule published on March 9, 2010. 75 FR 10950. The current test procedure for MHLFs appears in 10 CFR 431.324 and specifies the ballast efficiency calculation as lamp output power divided by the ballast input power. DOE has since published an RFI to initiate a data collection process to consider whether to amend DOE's test procedure for MHLFs. 83 FR 24680 (May 30, 2018). On July 14, 2021, DOE published a notice of proposed rulemaking to amend DOE's test procedures for MHLFs (“July 2021 NOPR”). 86 FR 37069.
In each energy conservation standards rulemaking, DOE conducts a screening analysis based on information gathered on all current technology options and prototype designs that could improve the efficiency of the products or equipment that are the subject of the rulemaking. As the first step in such an analysis, DOE develops a list of technology options for consideration in consultation with manufacturers, design engineers, and other interested parties. DOE then determines which of those means for improving efficiency are technologically feasible. Section 6(c)(1) of 10 CFR part 430, subpart C, appendix A (the “Process Rule”). DOE considers technologies incorporated in commercially available products or in working prototypes to be technologically feasible. Sections 6(c)(3)(i) and 7(b)(1) of the Process Rule.
After DOE has determined that particular technology options are technologically feasible, it further evaluates each technology option in light of the following additional screening criteria: (1) Practicability to manufacture, install, and service; (2) adverse impacts on product utility or availability; (3) adverse impacts on health or safety and (4) unique-pathway proprietary technologies. Sections 6(c)(3)(ii)-(v) and 7(b)(2)-(5) of the Process Rule. Additionally, it is DOE policy not to include in its analysis any proprietary technology that is a unique pathway to achieving a certain efficiency level (“EL”). Section IV.B.5 of this document discusses the results of the screening analysis for MHLFs, particularly the designs DOE considered, those it screened out, and those that are the basis for the standards considered in this rulemaking. For further details on the screening analysis for this rulemaking, see chapter 4 of the final determination technical support document (“TSD”).
When DOE proposes to adopt an amended standard for a type or class of covered product, it must determine the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for such a product. (42 U.S.C. 6295(p)(1)) Accordingly, in the engineering analysis, DOE determined the maximum technologically feasible (“max-tech”) improvements in energy efficiency for MHLFs using the design parameters for the most efficient products available on the market or in working prototypes. The max-tech levels that DOE determined for this rulemaking are described in section IV.C.4 and in chapter 5 of the final determination TSD.
For each trial standard level (“TSL”), DOE projected energy savings from application of the TSL to MHLFs purchased in the 30-year period that begins in the first full year of compliance with the potential standards (2025-2054).
DOE used its NIA spreadsheet models to estimate national energy savings (“NES”) from potential amended standards for MHLFs. The NIA spreadsheet model (described in section V.B.2 of this document) calculates energy savings in terms of site energy, which is the energy directly consumed by products at the locations where they are used. For electricity, DOE reports national energy savings in terms of primary energy savings, which is the savings in the energy that is used to generate and transmit the site electricity. For natural gas, the primary energy savings are considered to be equal to the site energy savings. DOE also calculates NES in terms of full-fuel-cycle (“FFC”) energy savings. The FFC metric includes the energy consumed in extracting, processing, and transporting primary fuels (
To adopt any new or amended standards for a covered MHLFs, DOE must determine that such action would result in significant energy savings. (42 U.S.C. 6295(o)(3)(B)) Although the term “significant” is not defined in the EPCA, the U.S. Court of Appeals, for the District of Columbia Circuit in
Historically, DOE did not provide specific guidance or a numerical threshold for determining what constitutes significant conservation of energy. Instead, DOE determined on a case-by-case basis whether a particular rulemaking would result in significant conservation of energy. In a final rule published February 14, 2020, DOE adopted a numerical threshold for significant conservation of energy. 85 FR 8626, 8670. Specifically, the threshold requires that an energy conservation standard result in a 0.30
EPCA provides seven factors to be evaluated in determining whether a potential energy conservation standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII)) The following sections discuss how DOE has addressed each of those seven factors in this final determination.
In determining the impacts of potential amended standards on manufacturers, DOE conducts a manufacturer impact analysis (“MIA”). DOE first uses an annual cash-flow approach to determine the quantitative impacts. This step includes both a short-term assessment—based on the cost and capital requirements during the period between when a regulation is issued and when entities must comply with the regulation—and a long-term assessment over a 30-year period. The industry-wide impacts analyzed include (1) industry net present value, which values the industry on the basis of expected future cash flows; (2) cash flows by year; (3) changes in revenue and income; and (4) other measures of impact, as appropriate. Second, DOE analyzes and reports the impacts on different types of manufacturers, including impacts on small manufacturers. Third, DOE considers the impact of standards on domestic manufacturer employment and manufacturing capacity, as well as the potential for standards to result in plant closures and loss of capital investment. Finally, DOE takes into account cumulative impacts of various DOE regulations and other regulatory requirements on manufacturers.
For individual consumers, measures of economic impact include the changes in LCC and PBP associated with new or amended standards. These measures are discussed further in the following section. For consumers in the aggregate, DOE also calculates the national net present value of the consumer costs and benefits expected to result from particular standards. DOE also evaluates the impacts of potential standards on identifiable subgroups of consumers that may be affected disproportionately by a standard.
As discussed further in section V.C of this document, DOE has concluded amended standards for MHLFs would not be cost-effective (and by extension, would not be economically justified) for the potential standard levels evaluated based on the PBP and LCC analysis. Therefore, DOE did not conduct an MIA analysis or LCC subgroup analysis for this final determination.
EPCA requires DOE to consider the savings in operating costs throughout the estimated average life of the covered product in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered product that are likely to result from a standard. (42 U.S.C. 6295(o)(2)(B)(i)(II)) DOE conducts this comparison in its LCC and PBP analysis.
The LCC is the sum of the purchase price of a product (including its installation) and the operating cost (including energy, maintenance, and repair expenditures) discounted over the lifetime of the product. The LCC analysis requires a variety of inputs, such as product prices, product energy consumption, energy prices, maintenance and repair costs, product lifetime, and discount rates appropriate for consumers. To account for uncertainty and variability in specific inputs, such as product lifetime and discount rate, DOE uses a distribution of values, with probabilities attached to each value.
The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost due to a more-stringent standard by the change in annual operating cost for the year that standards are assumed to take effect.
For its LCC and PBP analysis, DOE assumes that consumers will purchase the covered products in the first year of compliance with new or amended standards. The LCC savings for the considered efficiency levels are calculated relative to the case that reflects projected market trends in the absence of new or amended standards. DOE's LCC and PBP analysis is discussed in further detail in section IV.F.
Although significant conservation of energy is a separate statutory requirement for adopting an energy conservation standard, EPCA requires DOE, in determining the economic justification of a standard, to consider the total projected energy savings that are expected to result directly from the standard. (42 U.S.C. 6295(o)(2)(B)(i)(III)) As discussed in section IV.H, DOE uses the NIA spreadsheet models to project national energy savings.
In establishing product classes, and in evaluating design options and the impact of potential standard levels, DOE evaluates potential standards that would not lessen the utility or performance of the considered products. (42 U.S.C. 6295(o)(2)(B)(i)(IV)) Based on data available to DOE, the standards analyzed in this document would not reduce the utility or performance of the products under consideration in this rulemaking. DOE also determined that analyzed standards would not result in the unavailability performance characteristics of products under consideration that are generally available at the time of this rulemaking. (42 U.S.C. 6295(o)(4))
EPCA directs DOE to consider the impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from a standard. (42 U.S.C. 6295(o)(2)(B)(i)(V)) It also directs the Attorney General to determine the impact, if any, of any lessening of competition likely to result from a standard and to transmit such determination to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. (42 U.S.C. 6295(o)(2)(B)(ii)) Because DOE is not amending standards for MHLFs, DOE did not transmit a copy of its proposed determination to the Attorney General.
DOE also considers the need for national energy and water conservation in determining whether a new or amended standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(VI)) The energy savings from the adopted standards are likely to provide improvements to the security and reliability of the Nation's energy system. Reductions in the demand for electricity also may result in reduced costs for maintaining the reliability of the Nation's electricity system.
DOE maintains that environmental and public health benefits associated with the more efficient use of energy are important to take into account when
In determining whether an energy conservation standard is economically justified, DOE may consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VII)) To the extent DOE identifies any relevant information regarding economic justification that does not fit into the other categories described previously, DOE could consider such information under “other factors.”
As set forth in 42 U.S.C. 6295(o)(2)(B)(iii), EPCA creates a rebuttable presumption that an energy conservation standard is economically justified if the additional cost to the consumer of a product that meets the standard is less than three times the value of the first year's energy savings resulting from the standard, as calculated under the applicable DOE test procedure. DOE's LCC and PBP analyses generate values used to calculate the effect potential amended energy conservation standards would have on the payback period for consumers. These analyses include, but are not limited to, the 3-year payback period contemplated under the rebuttable-presumption test. In addition, DOE routinely conducts an economic analysis that considers the full range of impacts to consumers, manufacturers, the Nation, and the environment, as required under 42 U.S.C. 6295(o)(2)(B)(i). The results of this analysis serve as the basis for DOE's evaluation of the economic justification for a potential standard level (thereby supporting or rebutting the results of any preliminary determination of economic justification). The rebuttable presumption payback calculation is discussed in section IV.F.9 of this final determination.
This section addresses the analyses DOE has performed for this rulemaking with regards to MHLFs. Separate subsections address each component of DOE's analyses and respond to comments received.
DOE used several analytical tools to estimate the impact of the standards considered in this document. The first tool is a spreadsheet that calculates the LCC savings and PBP of potential amended or new energy conservation standards. The national impacts analysis uses a second spreadsheet set that provides shipments projections and calculates national energy savings and net present value of total consumer costs and savings expected to result from potential energy conservation standards. These spreadsheet tools are available on the DOE website for this rulemaking:
DOE received several comments regarding its tentative conclusion in the August 2020 NOPD to not amend standards for MHLFs. NEMA agreed with DOE's proposed determination stating that the industry would not be able to recover investments in new standards for MHLFs based on the continued decline of shipments (80 percent reduction in MHLF shipments from 2008 through 2018). (NEMA, No. 12 at p. 2) Additionally, NEMA stated that due to the rapidly declining market, attaining significant energy savings in a reasonable time did not seem possible. (NEMA, No. 12 at p. 4) Signify agreed with DOE's proposed determination that standards for MHLFs do not need to be amended. However, Signify stated that it supported standards for metal halide (“MH”) ballasts designed to operate lamps with wattages between >1,000 W and ≤2,000 W as such standards would incentivize a rational use of energy for high power MH lamp luminaire applications. (Signify, No. 13 at pp. 2, 12)
A private citizen also agreed with DOE's proposed determination, stating that shipments have declined over 90 percent in the last 10-15 years and will continue to do so. The citizen also stated that MH lamps are not used in new buildings or new outdoor lighting. The citizen recommended DOE not have to repeat this analysis in three years unless shipment increased by at least some “X” percent during that time. (Anonymous, No. 10, p. 1)
When expressing concerns regarding max-tech levels proposed in the August 2020 NOPD, NEMA recommended DOE publish a supplemental notice to the August 2020 NOPD rather than a final rule to avoid risking future challenges. (NEMA, No. 12 at p. 3) (See section IV.C.4 for the discussion of NEMA's comment regarding max-tech levels.) Additionally, in response to a separate rule requesting comment regarding rulemaking prioritizations, NEMA stated that if DOE were to quickly verify the decline in sale and no notable energy saving opportunities for MHLFs, a negative determination could be made and allow DOE resources to be applied elsewhere with more significant energy savings. (NEMA, No. 15
The CA IOUs stated that DOE's analysis was incomplete and that it should consider revising its shipments and cost data. The CA IOUs urged DOE to refrain from issuing a final determination until the adjustments to the data have been made and shared with stakeholders. (CA IOUs, No. 14, pp. 2-3) (See section IV.C.6 for discussion of the CA IOU's comments on prices and section IV.G for shipments.)
Concerns raised in comments received on the August 2020 NOPD are addressed in this document and do not result in major changes to the analysis. Hence, DOE is not publishing supplemental notice to the August 2020 NOPD. In this final determination DOE is not amending current standards for MHLFs because more stringent standards would not be cost-effective (and by extension, would not be economically justified). DOE made this determination by conducting an analysis of covered MHLFs including those containing MH ballasts designed to operate lamps with wattages between >1,000 W and ≤2,000 W. As noted in section II.A, DOE is completing this final determination as directed by EPCA to conduct a secondary rulemaking for MHLFs.
DOE conducted a market and technology assessment in support of this final determination. DOE develops information in the market and technology assessment that provides an overall picture of the market for the products concerned, including the purpose of the products, the industry structure, manufacturers, market characteristics, and technologies used in the products. This activity includes both quantitative and qualitative assessments, based primarily on publicly-available information. The subjects addressed in the market and technology assessment for this rulemaking include (1) a determination of the scope of the rulemaking and product classes, (2) manufacturers and
MHLF is defined as a light fixture for general lighting application designed to be operated with a metal halide lamp and a ballast for a metal halide lamp. 42 U.S.C. 6291(64); 10 CFR 431.322. Any equipment meeting the definition of MHLF is included in DOE's scope of coverage, though all equipment within the scope of coverage may not be subject to standards.
Signify stated that it appreciated the clarification in the August 2020 NOPD that DOE has does not have authority to evaluate amended standards for metal halide ballasts sold outside of MHLFs as this is a frequent question asked by its customers. (Signify, No. 13 at p. 13)
The current test procedure for MHLFs appears in 10 CFR 431.324 and specifies the ballast efficiency calculation as lamp output power divided by the ballast input power. With regards to the max-tech levels in the August 2020 NOPD, Signify questioned the certification data for any ballast operating a MH lamp at a frequency higher than 400 hertz (“Hz”). Signify stated that the current DOE test procedure references ANSI C82.6-2015(R2020)
The 2015 version and the 2015(R2020)
When evaluating and establishing energy conservation standards, DOE may divide covered products into product classes by the type of energy used, or by capacity or other performance-related features that justify a different standard. (42 U.S.C. 6295(q)) In making a determination whether capacity or another performance-related feature justifies a different standard, DOE must consider such factors as the utility of the feature to the consumer and other factors DOE deems appropriate. (
In the August 2020 NOPD, DOE reviewed metal halide lamp fixtures and the ballasts contained within them to identify performance-related features that could potentially justify a separate equipment class. DOE proposed to maintain the current equipment classes which are based on input voltage, rated lamp wattage, and designation for indoor versus outdoor application. 85 FR 47472, 47482-47483. DOE received no comments on this topic and maintains the current equipment classes in this final determination.
The equipment classes considered in this final determination are shown in Table IV.1.
In the technology assessment, DOE identifies technology options that would be expected to improve the efficiency of MHLFs, as measured by the DOE test procedure. The energy conservation standard requirements and DOE test procedure for MHLFs are based on the efficiency of the MH ballast contained within the fixture. Hence DOE identified technology options that would improve the efficiency of MH ballasts. To develop a list of technology options, DOE reviewed manufacturer catalogs, recent trade publications and technical journals, and consulted with technical experts.
A complete list of technology options DOE considered in the August 2020 NOPD appears in Table IV.2. 85 FR 47472, 47484. DOE did not receive comments on technology options considered in the August 2020 NOPD and therefore continues to consider them in this final determination. See chapter 3 of final determination TSD for further information.
DOE uses the following five screening criteria to determine which technology options are suitable for further consideration in an energy conservation standards rulemaking:
(1)
(2)
(3)
(4)
(5)
Sections 6(c)(3) and 7(b) of the Process Rule.
In sum, if DOE determines that a technology, or a combination of technologies, fails to meet one or more of the listed five criteria, it will be excluded from further consideration in the engineering analysis. The reasons for eliminating any technology are discussed in the following sections.
DOE evaluated of each the technology options against the screening analysis criteria and determined whether it should be excluded (“screened out”) based on the screening criteria. DOE did not receive comments on technology options screened out in the August 2020 NOPD and therefore screened out the same technology options in this final determination.
For magnetic ballasts, DOE screened out the technology option of using laminated sheets of amorphous steel. DOE determined that using amorphous steel could have adverse impacts on consumer utility because increasing the size and weight of the ballast may limit the places a customer could use the ballast. 85 FR 47472, 47484.
DOE concludes that all of the other identified technologies listed in section IV.B.4 met all five screening criteria to be examined further as design options in DOE's final determination. In summary, DOE did not screen out the following technology options:
DOE determined that these technology options are technologically feasible because they are being used or have previously been used in commercially-available products or working prototypes. DOE also finds that all of the remaining technology options meet the other screening criteria (
In the engineering analysis, DOE develops cost-efficiency relationships characterizing the incremental costs of achieving increased ballast efficiency. This relationship serves as the basis for cost-benefit calculations for individual consumers and the nation. The methodology for the engineering analysis consists of the following steps: (1) Selecting representative equipment classes; (2) selecting baseline metal halide ballasts; (3) identifying more efficient substitutes; (4) developing efficiency levels; and (5) scaling efficiency levels to non-representative equipment classes. The details of the engineering analysis are discussed in chapter 5 of the final determination TSD.
DOE selects certain equipment classes as “representative” to focus its analysis. DOE chooses equipment classes as representative primarily because of their high market volumes and/or unique characteristics. DOE established 24 equipment classes based on input voltage, rated lamp wattage, and indoor/outdoor designation. DOE did not directly analyze the equipment classes containing only fixtures with ballasts tested at 480 V due to low shipment volumes. DOE selected all other equipment classes as representative, resulting in a total of 12 representative classes covering the full range of lamp wattages, as well as indoor and outdoor designations. 76 FR 47472, 47485-47486.
In the August 2020 NOPD DOE directly analyzed the equipment classes shown in gray in Table IV.3 of this document. 76 FR 47472, 47485-47486. DOE did not receive any comments on the representative product classes presented in the August 2020 NOPD. Therefore, DOE continues to analyze the representative product classes shown in gray in Table IV.3 in this final determination.
Metal halide lamp fixtures are designed to be operated with lamps of certain rated lamp wattages and contain ballasts that can operate lamps at these wattages. To further focus the analysis, DOE selected a representative rated wattage in each equipment class. Each representative wattage was the most common wattage within each equipment class. In the August 2020 NOPD DOE found that common wattages within each equipment class were the same for outdoor and indoor fixtures. Specifically, DOE selected 70 W, 150 W, 250 W, 400 W, 1,000 W and 1,500 W as representative wattages to analyze. 85 FR 47472, 47486-47487.
DOE did not receive any comments on the representative wattages presented in the August 2020 NOPD and therefore continues to analyze the same representative wattages in this final determination. The representative wattages for each equipment class are summarized in Table IV.4 of this document. See chapter 5 of this final determination TSD for further details.
For each representative equipment class, DOE selected baseline ballasts to serve as reference points against which DOE measured changes from potential amended energy conservation standards. Typically, the baseline ballast is the most common, least efficient ballast that meets existing energy conservation standards.
In the August 2020 NOPD, DOE selected as baselines the least efficient ballasts meeting standards that have common attributes for ballasts in each equipment class such as circuit type, input voltage and ballast type. DOE used the efficiency values of ballasts contained in MHLFs certified in DOE's compliance certification database to identify baseline ballasts for all equipment classes except the >1,000 W and ≤2,000 W equipment class. Because fixtures in this equipment class are not currently subject to standards, and therefore do not have DOE certification data, DOE determined baseline ballast efficiency values by using catalog data.
In the August 2020 NOPD, DOE directly analyzed the baseline ballasts shown in Table IV.5 of this document. 85 FR 47472, 47487. DOE did not receive any comments on the baseline ballasts identified in the August 2020 NOPD and therefore continues to analyze the same baseline ballasts in this final determination. See chapter 5 of this final determination TSD for further details.
In the August 2020 NOPD, DOE selected more-efficient ballasts as replacements for each of the baseline ballasts by considering commercially available ballasts. DOE selected more-efficient ballasts with similar attributes as the baseline ballast when possible (
DOE did not receive any comments on the more-efficient ballasts selected in the August 2020 NOPD and therefore continues to analyze the same more-efficient ballasts in this final determination. In the August 2020 NOPD and chapter 5 of the NOPD TSD there were typos in some characteristics specified for the more-efficient ballasts. The system input power for the 70 W EL 2 representative unit stated as 0.814 in the August 2020 NOPD and TSD and should have been specified as 81.4. The system input power for the 250 W EL 1 representative unit stated as 276.5 in the August 2020 NOPD and TSD should have been 278.7. The system input power for the 1,500 W EL 1 representative unit stated as 1,000 W, Pulse start, with a system input power of 1063.8 and ballast efficiency of 0.94 in the August 2020 NOPD should have been a 1,500 W, Probe start with system input of 1,600.9 and ballast efficiency of 0.937. These typos have been corrected in this document and chapter 5 of this final determination TSD. The characteristics of the more-efficient representative units are summarized in Tables IV.6 through IV.11 of this document. See chapter 5 of this final determination TSD for further details.
Based on the more-efficient ballasts selected for analysis, DOE develops ELs for the representative equipment classes. DOE defines a “max-tech” efficiency level to represent the maximum possible efficiency for a given product.
In the August 2020 NOPD DOE identified one magnetic EL in every equipment class. The more-efficient magnetic EL represents a magnetic ballast with a higher grade of steel compared to the baseline. DOE identified a second EL (an electronic EL) for the ≥150 W and ≤250 W and >250 W and ≤500 W equipment classes. The standard electronic level represents a ballast with standard electronic circuitry. DOE identified a third EL (a more efficient electronic EL) in the ≥50 W and ≤ 100 W and >100 W and <150 W equipment classes. The more-efficient electronic EL represents an electronic ballast with an improved circuit design and/or more efficient components compared to the standard electronic level. 85 FR 47472, 47487-47488.
DOE received several comments regarding the ELs proposed in the August 2020 NOPD.
NEMA stated that DOE had not adequately explained the basis for changing efficiency equations from the previous rulemaking. NEMA stated that the modifications to the equations resulted in efficiency levels inconsistent with DOE's intent. (NEMA, No. 12 at p. 2)
Current MHLF standards specify power-law equations for ballasts operating lamps with rated wattages ≥50 W and ≤500 W and linear equations for ballasts operating lamps with rated wattages >500 W and ≤1,000 W. Using MHLF efficiency data DOE determined that the current equation forms remain valid. DOE modified only the coefficients and exponents of the equations to best fit the MHLF efficiency data while forming one continuous equation across equipment classes, where possible. In this final determination, DOE maintains the equations put forth in the August 2020 NOPD but makes minor adjustments, detailed in the paragraphs below, to the proposed coefficients and exponents to allow the most efficient products to meet max tech.
For the ≥50 W and ≤100 W equipment class tested at voltages other than 480 V NEMA stated that EL 1 and EL 2 appeared feasible but would require stretching the technological capability. NEMA stated that EL 3 for this equipment class may be achievable but would require physical size changes that would render the product incompatible with the existing fixture form factor. NEMA stated DOE should modify EL 1 and EL 2 according to current product capabilities and eliminate EL 3 for this equipment class. (NEMA, No. 12 at p. 2) Signify stated that for the ballasts in the ≥50 W and ≤100 W tested at voltages other than 480 V equipment class the minimum efficiency requirement would increase by 0.10 at the proposed EL 3. This would require a ballast to operate a 70 W lamp at an efficiency higher than 0.90. Signify stated that a 0.90 ballast efficiency requirement would be higher than DOE's current efficiency requirement for an external power supply, a device that is simpler with less stages than an electronic ballast. Signify stated it is difficult to explain how a ballast with the same power as an external power supply would have a higher efficiency and still preserve the necessary form factor. (Signify, No. 13 at pp. 8-10)
DOE identified ballasts in DOE's compliance certification database that are in the ≥50 W and ≤100 W tested at voltages other than 480 V equipment class and meet the proposed EL 3 for this equipment class. These ballasts included models that operate 70 W lamps. Because there are products that meet the max tech level, DOE is not adjusting ELs proposed for this equipment class in this final determination.
For the >100 W and <150 W equipment classes for all voltages, NEMA stated that EL 3 was unrealistically high for ballasts tested at 480 V (88.9 percent versus the current 82 percent requirement) and as high as 90.9 percent for ballasts tested at voltages other than 480 V. NEMA stated that based on its review of DOE's
DOE identified ballasts in DOE's compliance certification database that are in the >100 W and <150 W tested at voltages other than 480 V equipment class and meet the proposed EL 3 for this equipment class. Because there are products that meet the max tech level, DOE is not adjusting ELs proposed for this equipment class in this final determination. However, DOE is adjusting the ELs for the >100 W and <150 W tested at 480 V equipment class (see section IV.C.5 for further details) in this final determination.
NEMA stated that for the ≥150 W and ≤250 W equipment classes for all voltages the proposed ELs for 150 to 200 W are close to those in the previous rulemaking and therefore, already screened for technological feasibility. (NEMA, No. 12 at p. 3) DOE ensured that all ELs analyzed represent commercially available products and therefore, are technologically feasible.
NEMA stated that the proposed EL 1 for ballasts operating lamps between 200 W to 250 W appears slightly lower than the current standards, which is not permissible and should be amended. (NEMA, No. 12 at p. 3)
DOE reviewed all ELs developed for this analysis to ensure that they are equal to or more stringent to the existing minimum MHLF ballast efficiency standard (
NEMA also stated that for ballasts operating lamps between 200 W and 250 W, EL 2 appears technologically feasible. Additionally, NEMA stated that based on its review of DOE's compliance certification database only two products operating lamps between 200 W and 250 W, both from a single manufacturer, met EL 3, which means EL 3 is arguably infeasible. (NEMA, No. 12 at p. 3)
DOE identified ballasts in DOE's compliance certification database that are in ≥150 W and ≤250 W tested at voltages other than 480 V equipment class and meet the proposed EL 3 for this equipment class. These ballasts are from multiple manufacturers. Because there are products that meet the max tech level, DOE is not adjusting ELs (aside from EL 1 to prevent backsliding) proposed for this equipment class in this final determination. DOE addresses ELs for the ≥150 W and ≤250 W tested at 480 V equipment class in section IV.C.5.
NEMA stated that the proposed EL 1 for ballasts operating lamps between 200 W and 500 W for all voltages appears slightly lower than the current standards, which is not permissible. (NEMA, No. 12 at p. 3)
For the >250 W and ≤500 W equipment class tested at voltages other than 480 V, NEMA stated that DOE's compliance certification database does not have products meeting EL 2 and EL 3 for higher wattages indicating that they are technologically infeasible. (NEMA, No. 12 at p. 3)
DOE identified ballasts in DOE's compliance certification database that are in the >250 W and ≤500 W equipment class tested at voltages other than 480 V equipment class and meet the proposed EL 3 for this equipment class. These ballasts operate 250 W and 400 W lamps. Because there are products that meet the max tech level, DOE is not adjusting ELs proposed for this equipment class in this final determination. For EL 1 for the ≥250 W and ≤500 W equipment class tested at voltages other than 480 V, DOE is modifying the equation to ensure no backsliding occurs across the entire wattage range. Specifically, in this final determination DOE is modifying the exponent in the equation from 1/(1 + 0.5017*P^(−0.26)) to 1/(1 + 0.507*P^(−0.263)).
For the >500 W and ≤1,000 W equipment class, NEMA stated that the 97 percent efficiency requirement at EL 1 would eliminate nearly all currently certified products making it technologically infeasible. NEMA stated that per DOE's compliance certification database the few ballasts that reach the 93 percent efficiency level would not be able to meet 97 percent efficiency because they operate 1,000 W lamps. (NEMA, No. 12 at p. 3)
The max tech level for the >500 W and ≤1,000 W equipment class tested at voltages other than 480V is based on a 1,000 W representative unit with an efficiency of 0.94. DOE identified ballasts in DOE's compliance certification database that are in the >500 W and ≤1,000 W tested at voltages other than 480 V equipment class and meet the proposed EL 1 (max tech) for this equipment class. Because there are products that meet the max tech level, DOE is not adjusting ELs proposed for this equipment class in this final determination. DOE addresses ELs for the >500 W and ≤1,000 W tested at 480 V equipment class in section IV.C.5.
For the >1,000 W and ≤2,000 W equipment class, Signify stated DOE should set a standard but disagreed with DOE's proposed EL for this equipment class. Signify noted that, per some ballast catalogs, DOE found that ballasts operating 2,000 W lamps are less efficient than those operating 1,000 W. Signify stated that ballast efficiency decreasing as wattage increases is contradictory to ballasts in other equipment classes and it had found no documented scientific or engineering explanation to substantiate such a trend. Signify stated that research indicates that for a magnetic transformer (or magnetic ballast) energy efficiency increases with the transformer power rate. To align with this trend, Signify suggested DOE change its proposed EL 1 equation from −0.000008*P + 0.946 to 0.00001*P + 0.928 for the >1,000 W and ≤2,000 W equipment class. (Signify, No. 13 at pp. 2-5)
NEMA also stated that based on its calculations DOE was proposing a 93 percent efficiency for ballasts operating lamps at 1,000 W and 92 percent efficiency for those operating lamps at 2,000 W and it was unusual for efficiency requirements to decrease as wattage increases. (NEMA, No. 12 at p. 3) NEMA also stated that the proposed levels for the >1,000 W and ≤2,000 W equipment class appear technologically feasible. However, NEMA stated that because these products are not currently subject to standards and thus have no certified products, it cannot comment in detail on potential product availability. (NEMA, No. 12 at p. 3)
In developing the equation for the >1,000 W to ≤2,000 W equipment class DOE prioritized maintaining a continuous equation across product classes. Ballasts in the >1,000 W to ≤2,000 W equipment class are not currently subject to standards and therefore are not certified in DOE's compliance certification database. Based on the limited data available, maintaining a continuous equation resulted in a slight negative slope for the efficiency level equation.
Table IV.12 summarizes the efficiency requirements and associated equations
In the August 2020 NOPD, DOE did not directly analyze MHLFs with ballasts that would be tested at an input voltage of 480 V. DOE developed a scaling relationship to establish ELs for these equipment classes. Ballasts capable of operating at 120 V or 277 V are predominantly quad-voltage ballasts, therefore, DOE chose to compare quad-voltage ballasts with 480 V ballasts to develop a scaling factor. 85 FR 47472, 47489-47490.
Based on its review of the compliance certification database, DOE determined that the average reduction in ballast efficiency for 480 V ballasts compared to quad ballasts is greater for ballasts designed to operate lamps rated less than 150 W compared to ballasts designed to operate lamps rated greater than or equal to 150 W. DOE developed two separate scaling factors, one for the 50 W-150 W range and the second for the 150 W-1000 W range. In the August 2020 NOPD for 480 V equipment classes in the 50 W-150 W range, DOE found the average reduction in ballast efficiency to be 3.0 percent, and for those in the 150 W-1000 W range, DOE found the average reduction in ballast efficiency to be 1.0 percent. DOE applied these scaling factors to the representative equipment class EL equations to develop corresponding EL equations for ballasts tested at an input voltage of 480 V. Accordingly, for the non-representative equipment classes DOE applied a multiplier of 0.97 for equations in the 50 W-150 W range and of 0.99 for equations in the 150 W-1000 W range. 85 FR 47472, 47489-47490.
DOE received comments on the scaled ELs proposed in the August 2020 NOPD. For ≥50 W and ≤100 W equipment class tested at 480 V, NEMA stated that a valid max tech proposal for magnetic ballasts is achieved with a 2 percent reduction of EL 1. (NEMA, No. 12 at p. 2) For the >100 W and <150 W equipment class tested at 480 V, NEMA stated that based on its review of products in DOE's compliance certification database only EL 1 was technologically feasible. (NEMA, No. 12 at p. 2)
DOE reviewed the 3 percent scaling factor for the equipment classes tested at 480 V in the 50 W-150 W range proposed in the August 2020 NOPD. Specifically, DOE reexamined the efficiencies of certified products in this equipment class to ascertain the reduction in ELs for the corresponding representative equipment class that would allow products to meet max tech levels. Per this review, DOE is revising the scaling factor to result in a 12 percent reduction (
For the >250 W and ≤500 W equipment class tested at 480 V, NEMA stated that the 1 percent scaling factor still does not allow any products in DOE's compliance certification database to meet the proposed ELs, making them technologically infeasible. (NEMA, No. 12 at p. 3) Signify stated that the proposed EL 1 for the >500 W and ≤1,000 W equipment class tested at 480V did not seem technologically feasible. Signify stated that such an efficiency for a magnetic ballast seemed impractical, particularly when there has been no research or innovation for the product. (Signify, No. 13 at pp. 6-8)
DOE identified ballasts in DOE's compliance certification database that are in the >500 W and ≤1,000 W tested at 480 V equipment class and meet the proposed EL 1 (max tech) for this equipment class. However, DOE did determine adjustments were needed to EL 1 (max tech) for the >250 W and ≤500 W equipment class tested at 480 V to allow for certified products to meet it. Hence, DOE reviewed the 1 percent scaling factor for the equipment classes tested at 480 V in the 150 W-1,000 W range proposed in the August 2020 NOPD. 85 FR 47472, 47489-47490. Per this review, DOE is revising the scaling factor to result in a 4 percent reduction (
Additionally, Signify stated the ELs in the August 2020 NOPD resulted in an energy efficiency for a ballast from the >500 W and <1,000 W equipment class tested at 480 V that is higher than ballast efficiency of the equipment class with the same wattage range but tested at other voltages. Signify stated that the opposite was true for all other equipment classes. (Signify, No. 13 at p. 6) Specifically, Signify stated that to meet the proposed EL 1 a ballast operating a 1,000 W lamp tested at 480 V would require an efficiency of 0.971 while the same ballast tested at 277 V would require 0.936. Hence for the >500 W and ≤1,000 W equipment class for ballasts tested at 480 V, Signify suggested DOE not adopt the proposed EL1 and instead maintain the existing standard. (Signify, No. 13 at p. 8)
In the August 2020 NOPD DOE specified the scaled equation for EL 1 of the >500 W and ≤1,000 W equipment class tested at 480 V as 0.99*(0.0001*P+0.881). 85 FR 47472, 47489-47490. The coefficient in this equation was erroneously rounded in Table IV.13 of the August 2020 NOPD and is correctly specified in this final determination as 0.99*(0.000057*P+0.881). With this correction, ballasts in the >500 W and ≤1,000 W equipment class tested at 480 V must meet a lower minimum efficiency than the same ballasts tested at voltages other than 480 V. However, as noted above, to prevent backsliding DOE maintained current standard for EL 1 of the >500 W and ≤1,000 W equipment class tested at 480 V for this analysis.
In the August 2020 NOPD and in this final determination, for ballasts greater than 1,000 W, DOE determined the need for a scaling factor based on manufacturer catalog data. DOE determined that ballasts greater than 1,000 W do not show a difference in efficiency between 480 V and non-480 V ballasts. DOE did not apply a scaling factor to develop efficiency levels for 480 V ballasts in this equipment class, however, DOE continues to consider the 480 V and non-480 V equipment classes separately for MHLFs greater than 1,000 W for the purposes of this analysis. 85 FR 47472, 47489-47490.
Table IV.13 summarizes the efficiency requirements at each EL for the non-representative equipment classes. See chapter 5 of this final determination TSD for further details.
DOE develops manufacturer selling prices (“MSPs”) for covered equipment and applies markups to create end-user prices to use as inputs to the LCC analysis and NIA. The MSP of a MHLF comprises of the MSP of the fixture components including any necessary additional features and the MSP of the metal halide ballast contained in the fixture. For the August 2020 NOPD, DOE conducted teardown analyses on 31 commercially available MHLFs and the ballasts included in these fixtures. Using the information from these teardowns, DOE summed the direct material, labor, and overhead costs used to manufacture a MHLF or MH ballast, to calculate the manufacturing production cost (“MPC”).
To determine the fixture components MSPs, DOE conducted fixture teardowns to derive MPCs of empty fixtures (
To calculate an empty fixture price, DOE first identified the applications commonly served by the representative wattage in each equipment class based on DOE's compliance certification database. DOE selected the most popular fixture types for both indoor and outdoor applications. The representative fixture types for each equipment class selected in the August 2020 NOPD are shown in Table IV.14. 85 FR 47472, 47490.
DOE then used teardown information for 31 fixtures that spanned the representative wattages and the applications identified for each representative wattage. The MPC of the empty fixture for each representative wattage was calculated by weighting the empty fixture cost for each application by the popularity of each application. DOE determined the weightings based on the number of fixtures for each application at each representative wattage in DOE's certification database. 85 FR 47472, 47490-47491.
The empty fixture MPCs remained the same at each magnetic efficiency level but incremental costs were added when the fixture contained an electronic ballast. Specifically, in the August 2020 NOPD, DOE applied cost adders to fixtures that use electronic ballasts for (1) transient protection, (2) thermal management, and (3) 120 V auxiliary power functionality. These costs varied based on whether the fixture application was indoor, indoor industrial, or outdoor. 85 FR 47472, 47491.
In the August 2020 NOPD DOE conducted market research to determine the prices of each cost adder. DOE determined the price of voltage transient protection to be $9.03. DOE determined that the increase in the empty fixture cost to be 20 percent for adding thermal management to a fixture. DOE determined the average market price of the 120 V auxiliary tap to be $7.38. DOE added these costs to the empty fixture MPC for outdoor and indoor industrial fixtures at ELs requiring an electronic ballast. Because the auxiliary tap is needed in only 10 percent of the ballasts in indoor fixtures, DOE added $0.74 to the indoor empty fixture MPC for ELs requiring an electronic ballast. 85 FR 47472, 47491.
In the August 2020 NOPD, DOE applied a fixture manufacturer markup of 1.58 to the empty fixture MPC to determine the MSP of the fixture at each EL. DOE maintained the manufacturer markup developed in the 2014 MHLF final rule. In that rule, DOE determined the fixture manufacturer markup to be 1.58 based on financial information from manufacturers' SEC 10-K reports, as well as feedback from manufacturer interviews. 85 FR 47472, 47491.
For the August 2020 NOPD, to determine the MPCs of the metal halide ballasts identified in this analysis, DOE used data from the teardown analysis which included cost data for magnetic ballasts at the baseline in each equipment class. To determine the ballast MPC at the higher efficiency levels, DOE developed a ratio between the average retail price of ballasts at the efficiency level under consideration and ballasts at the baseline. DOE collected retail prices from electrical distributors (
In the August 2020 NOPD, DOE applied a ballast manufacturer markup of 1.47 to the empty fixture MPC to determine the MSP of the fixture at each EL. DOE maintained the manufacturer markup developed in the 2014 MHLF final rule. In that rule, DOE determined the ballast manufacturer markup to be 1.47 based on financial information from manufacturers' SEC 10-K reports, as well as feedback from manufacturer interviews. 79 FR 7746, 7783
The CA IOUs stated that DOE used cost assumptions for lamps, ballasts, and housing from the previous rulemaking which was conducted six years ago and did not provide empirical data to support that the assumptions were still valid given the evolving lighting market. (CA IOUs, No. 14, p. 2)
As noted, DOE developed fixture and ballast prices based on teardowns and retail price collections conducted for this analysis. Additionally, DOE conducted market research for this rulemaking to confirm the cost adder estimates used in the 2014 MHLF final rule. DOE determined that there are likely minimal changes to the financial structure of fixture or ballast manufacturers and therefore, the respective markups from the 2014 MHLF final rule remain valid.
DOE is maintaining the results of MSPs determined in the August 2020 NOPD for this final determination. The total empty fixture MSPs, replacement ballast MSPs, and fixture with ballast MSPs are detailed in chapter 5 of the final determination TSD.
The markups analysis develops appropriate markups (
Before it could develop markups, DOE needed to identify distribution channels (
To estimate wholesaler and utility markups, DOE used financial data from 10-K reports of publicly owned electrical wholesalers and utilities. DOE's markup analysis developed both baseline and incremental markups to transform the fixture MSP into an end-user equipment price. DOE used the baseline markups to determine the price of baseline designs. Incremental markups are coefficients that relate the change in the MSP of higher-efficiency designs to the change in the wholesaler and utility sales prices, excluding sales tax. These markups refer to higher-efficiency designs sold under market conditions with new and amended energy conservation standards.
In the August 2020 NOPD, DOE used the same wholesaler and contractor markups as the 2014 MHLF final rule and assumed a wholesaler baseline markup of 1.23 and a contractor markup of 1.13, yielding a total wholesaler distribution channel baseline markup of 1.49. The lower wholesaler incremental markup of 1.05 yields a lower total incremental markup through this distribution channel of 1.27. DOE also assumed a utility markup of 1.00 for the utility distribution channel in which the manufacturer sells a fixture directly to the end-user. DOE again assumed a contractor markup of 1.13 for the utility distribution channel in which a manufacturer sells a fixture to a contractor who in turn sells it to the end-user yielding an overall markup of 1.21 for this channel. 85 FR 47472, 47492. DOE used these same markups for this final determination analysis.
The sales tax represents state and local sales taxes applied to the end-user equipment price. DOE obtained state and local tax data from the Sales Tax Clearinghouse.
Table IV.15 summarizes the markups at each stage in the distribution channels and the overall baseline and incremental markups, and sales taxes, for each of the three identified channels.
Using these markups, DOE generated fixture end-user prices for each EL it considered, assuming that each level represents a new minimum efficiency standard.
Chapter 6 of the final determination TSD provides details on DOE's development of markups for MHLFs.
The purpose of the energy use analysis is to determine the annual energy consumption of MHLFs at different efficiencies in the commercial, industrial, and outdoor stationary sectors, and to assess the energy savings potential of increased MHLF efficiency. The energy use analysis estimates the range of energy use of MHLFs in the field (
To develop annual energy use estimates, DOE multiplied the lamp-and-ballast system input power (in watts) by annual usage (in hours per year). DOE characterized representative lamp-and-ballast systems in the engineering analysis, which provided measured input power ratings. To characterize the country's average usage of fixtures for a typical year, DOE developed annual operating hour distributions by sector, using data published in the 2015 U.S. Lighting Market Characterization (“LMC”).
Chapter 7 of the final determination TSD provides details on DOE's energy use analysis for MHLFs.
DOE conducted LCC and PBP analyses to evaluate the economic impacts on individual customers of
□ The LCC is the total customer expense of equipment over the life of that equipment, consisting of total installed cost (manufacturer selling price, distribution chain markups, sales tax, and installation costs) plus operating costs (expenses for energy use, maintenance, and repair). To compute the operating costs, DOE discounts future operating costs to the time of purchase and sums them over the lifetime of the equipment.
□ The PBP is the estimated amount of time (in years) it takes customers to recover the increased purchase cost (including installation) of a more-efficient equipment through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost at higher efficiency levels by the change in annual operating cost for the year that amended or new standards are assumed to take effect.
For any given efficiency level, DOE measured the change in LCC relative to the LCC in the no-new-standards case, which reflects the estimated efficiency distribution of MHLFs in the absence of new or amended energy conservation standards. In contrast, the PBP for a given efficiency level is measured relative to the baseline equipment.
For each considered efficiency level in each equipment class, DOE calculated the LCC and PBP for a nationally representative set of building types. As stated previously, DOE developed customer samples from the 2015 LMC. For each sample customer, DOE determined the energy consumption for the MHLF and the appropriate electricity price. By developing a representative sample of building types, the analysis captured the variability in energy consumption and energy prices associated with the use of MHLFs.
Inputs to the calculation of total installed cost include the cost of the equipment—which includes MPCs, manufacturer markups, retailer and distributor markups, and sales taxes—and installation costs. Inputs to the calculation of operating expenses include annual energy consumption, energy prices and price projections, repair and maintenance costs, equipment lifetimes, and discount rates. DOE created distributions of values for operating hours, equipment lifetime, discount rates, electricity prices, and sales taxes, with probabilities attached to each value, to account for their uncertainty and variability. For example, DOE created a probability distribution of annual energy consumption in its energy use analysis, based in part on a range of annual operating hours. The operating hour distributions capture variations across building types, lighting applications, and metal halide systems for three sectors (commercial, industrial, and outdoor stationary). In contrast, fixture MSPs were specific to the representative designs evaluated in DOE's engineering analysis, and price markups were based on limited, publicly available financial data. Consequently, DOE used discrete values instead of distributions for these inputs.
The computer model DOE uses to calculate the LCC and PBP, which incorporates Crystal Ball
DOE calculated the LCC and PBP for all customers of MHLFs as if each were to purchase new equipment in the expected year of required compliance with new or amended standards. Any amended standards would apply to MHLFs manufactured three years after the date on which any new or amended standard is published. (42 U.S.C. 6295(hh)(3)(B)) At this time, DOE estimates publication of a final determination in the latter half of 2021. Therefore, for purposes of its analysis, DOE used 2025 as the first year of compliance with any amended standards for MHLFs.
Table IV.16 summarizes the approach and data DOE used to derive inputs to the LCC and PBP calculations. The subsections that follow provide further discussion. Details of the spreadsheet model, and of all the inputs to the LCC and PBP analyses, are contained in chapter 8 of the final determination TSD and its appendices.
To calculate customer equipment costs, DOE multiplied the MSPs developed in the engineering analysis by the markups described previously (along with sales taxes). DOE used different markups for baseline equipment and higher-efficiency equipment, because DOE applies an incremental markup to the increase in MSP associated with higher-efficiency equipment. See section IV.D for further details.
Installation cost is the cost to install the fixture such as the labor, overhead, and any miscellaneous materials and parts needed. DOE used the installation costs from the 2014 MHLF final rule, but inflated to 2020$ using the GDP price deflator.
For each sampled customer, DOE determined the energy consumption for an MHLF at different efficiency levels using the approach described previously in section IV.E of this document. For this final determination, DOE based the annual energy use inputs on sectoral operating hour distributions (commercial, industrial, and outdoor stationary sectors), with the exception of a discrete value (approximately 770 hours per year) for the 1,500 W equipment class that is primarily limited to sports lighting. DOE used operating hour (and, by extension, energy use) distributions to better characterize the potential range of operating conditions faced by MHLF customers.
Because marginal electricity price more accurately captures the incremental savings associated with a change in energy use from higher efficiency, it provides a better representation of incremental change in consumer costs than average electricity prices. Therefore, DOE applied average electricity prices for the energy use of the product purchased in the no-new-standards case, and marginal electricity prices for the incremental change in energy use associated with the other efficiency levels considered in this final determination.
DOE derived annual electricity prices in 2019 for each census division using data from the Edison Electric Institute (EEI) Typical Bills and Average Rates reports.
DOE calculated weighted-average values for average and marginal price for the 13 census divisions and large states for the commercial, industrial, and outdoor stationary sectors.
To estimate energy prices in future years, DOE multiplied the average regional energy prices by a projection of annual change in national-average commercial and industrial energy prices in the Reference case of
Replacement costs include the labor and materials costs associated with replacing a ballast or lamp at the end of their lifetimes and are annualized across the years preceding and including the actual year in which equipment is replaced. The costs are taken from the 2014 MHLF final rule but inflated to 2020$ using the GDP price deflator. For the LCC and PBP analysis, the analysis period corresponds with the fixture lifetime that is assumed to be longer than that of either the lamp or the ballast. For this reason, ballast and lamp prices and labor costs associated with lamp or ballast replacements are included in the calculation of operating costs.
The CA IOUs suggested that DOE update the MHLF cost data for lamps, ballasts, and housings, rather than using the costs from the 2014 MHLF final rule. (CA IOUs, No. 14 at p. 2) DOE notes that replacement costs for ballasts come directly from this final determination engineering analysis (see section IV.C). However, DOE has continued to use the replacement lamp costs from the 2014 MHLF final rule (but inflated to 2020$). The CA IOUs acknowledged that MHLFs are a legacy lighting technology, and NEMA stated that there has been an 80 percent decline in the MHLFs market from 2008-2018. (CA IOUs, No. 14 at pp. 1-2; NEMA, No. 12 at p. 2) Given this recent substantial decline in the MHLFs market, it is unlikely that prices would have changed appreciably due to price learning since the 2014 MHLF final rule analysis was conducted. Therefore, DOE has only applied inflation to the MHLF replacement lamp prices since the 2014 MHLF final rule analysis.
DOE defined equipment lifetime as the age when a fixture, ballast, or lamp is retired from service. For fixtures in all equipment classes, DOE assumed average lifetimes for indoor and outdoor fixtures of 20 and 25 years, respectively. DOE also assumed that magnetic ballasts had a rated lifetime of 50,000 hours and electronic ballasts had a rated lifetime of 40,000 hours. DOE used manufacturer catalog data to obtain rated lifetime estimates (in hours) for lamps in each equipment class. DOE accounted for uncertainty in the fixture, ballast, and lamp lifetimes by applying Weibull survival distributions to the components' rated lifetimes. Furthermore, DOE included a residual value calculation for lamps and ballasts to account for the residual monetary value associated with the remaining life in the lamp and ballast at the end of the fixture lifetime. As stated in the 2020 NOPD, DOE based all assumptions for estimating equipment lifetime from the 2014 MHLF final rule. 85 FR 47472, 47494.
The discount rate is the rate at which future expenditures are discounted to
DOE developed a no-new-standards case efficiency distribution using model count data from the compliance certification database collected on May 5, 2021. The compliance certification database does not contain models in the >1,000 W and ≤2,000 W equipment class; therefore, DOE assumed 56 percent of the market is at the baseline and 44 percent of the market is at EL 1, based on MHLF catalog data. The complete efficiency distribution for 2025 is shown in Table IV.17.
See chapter 8 of the final determination TSD for further information on the derivation of the efficiency distributions.
The payback period is the amount of time it takes the consumer to recover the additional installed cost of more-efficient products, compared to baseline products, through energy cost savings. Payback periods are expressed in years. Payback periods that exceed the life of the product mean that the increased total installed cost is not recovered in reduced operating expenses.
The inputs to the PBP calculation for each efficiency level are the change in total installed cost of the product and the change in the first-year annual operating expenditures relative to the baseline. The PBP calculation uses the same inputs as the LCC analysis, except that discount rates are not needed.
As noted previously, EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the first year's energy savings resulting from the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii)) For each considered efficiency level, DOE determined the value of the first year's energy savings by calculating the energy savings in accordance with the applicable DOE test procedure, and multiplying those savings by the average energy price projection for the year in which compliance with the amended standards would be required.
DOE uses projections of annual equipment shipments to calculate the national impacts of potential amended or new energy conservation standards on energy use and NPV.
The stock turnover model calculates demand for new MHLFs based on the expected demand for replacement MHLFs and the decrease in MHLF demand due to the adoption of out-of-scope LED alternatives. The model is initialized using a time series of historical shipments data compiled from the 2014 MHLF final rule and data from NEMA. The historical shipments for 2008 from the 2014 MHLF final rule were projected to 2018 using NEMA sales indices from 2008 to 2018. 79 FR 7746, 7788-89. DOE used NEMA provided sales indices for the second quarter of 2020 for metal halide lamps to project the historical shipments forward to 2020.
NEMA commented in their response to the MHLF NOPD that the market for MHLFs has continued to show a steady decline since the July 2019 RFI in favor of LED Technology. (NEMA, No. 12 at p. 2) With the diminishing shipments there is no reasonable possibility of industry recovering investments in new conservation standards of MHLFs. As in the previous rulemaking, DOE continued to assume that an increasing fraction of the MHLF market will move to out-of-scope LED alternatives over the course of the shipments analysis period. 85 FR 47472, 47495. DOE modelled the incursion of LED equipment in the form of a Bass diffusion curve.
The CA IOUs commented on the MHLF NOPD that DOE's current A-Line based shipment curves approach to modelling shipments for MHLF products should be replaced by a diffusion curve based on linear fluorescent shipments. (CA IOUs, No. 14 at p. 2) However, DOE found that a Bass diffusion curve based on market share data for general service LED lamps provided a better fit to the historic MHLF shipments data from NEMA than a Bass diffusion curve based on linear fluorescent shipments, and NEMA expressed support for the shipment declines projected in the NOPD. (NEMA, No. 12 at p. 2) Additionally, the lighting power allowance from the 2019 update to ASHRAE 90.1, noted during the MHLF NOPD public meeting, suggests a rapid transition to LED technology. (EEI, Public Meeting Transcript, No. 11 at p. 47) As a result, DOE continued to base the Bass diffusion model on market share data for general service LED lamps for this final determination.
Another key input to the national impacts analysis is the distribution of MHLF shipments by EL in the no-new standards case and the standards cases. DOE apportioned the total shipments of MHLFs to each EL in the no-new-standards case using data downloaded from the compliance certification database
For the standards cases, DOE used a “roll-up” approach to estimate market share for each EL for the year that standards are assumed to become effective (2025). For each standards case, the market shares of ELs in the no-new-standards case that do not meet the standard under consideration “roll up” to meet the new standard level, and the market share of equipment above the standard remains unchanged.
For both the no-new-standards and standards cases, DOE assumed no efficiency trend over the analysis period. For a given case, market shares were held fixed to their 2025 distribution.
DOE typically includes the impact of price learning in its analysis. In a standard price learning model,
The NIA assesses the NES and the NPV from a national perspective of total customer costs and savings that would be expected to result from new or amended standards at specific efficiency levels.
DOE evaluates the impacts of new or amended standards by comparing a case without such standards with standards-case projections. The no-new-standards case characterizes energy use and customer costs for each equipment class in the absence of new or amended energy conservation standards. DOE compares the no-new-standards case with projections characterizing the market for each equipment class if DOE adopted new or amended standards at specific energy efficiency levels (
DOE uses a spreadsheet model to calculate the energy savings and the national customer costs and savings from each TSL. Interested parties can review DOE's analyses by changing various input quantities within the spreadsheet. The NIA spreadsheet model uses typical values (as opposed to probability distributions) as inputs.
Table IV.18 summarizes the inputs and methods DOE used for the NIA analysis for this final determination. Discussion of these inputs and methods follows the table. See chapter 10 of the final determination TSD for further details.
The national energy savings analysis involves a comparison of national energy consumption of the considered equipment between each potential TSL and the case with no new or amended energy conservation standards. DOE calculated the national energy consumption by multiplying the number of units (stock) of each equipment type (by vintage or age) by the unit energy consumption (also by vintage). DOE calculated annual NES based on the difference in national energy consumption for the no-new standards case and for each higher efficiency standard case. DOE estimated energy consumption and savings based on site energy and converted the electricity consumption and savings to primary energy (
DOE generally accounts for the direct rebound effect in its NES analyses. Direct rebound reflects the idea that as appliances become more efficient, customers use more of their service because their operating cost is reduced. In the case of lighting, the rebound effect could be manifested in increased hours of use or in increased lighting density (lumens per square foot). In response to the July 2019 RFI, NEMA commented that a rebound rate of 0 is appropriate. (NEMA, No. 3 at p. 9) DOE assumed no rebound effect for MHLFs in this final determination.
In 2011, in response to the recommendations of a committee on “Point-of-Use and Full-Fuel-Cycle Measurement Approaches to Energy Efficiency Standards” appointed by the National Academy of Sciences, DOE announced its intention to use FFC measures of energy use and greenhouse gas and other emissions to the extent that emissions analyses are conducted. 76 FR 51281 (Aug. 18, 2011). After evaluating the approaches discussed in the August 18, 2011 notice, DOE published a statement of amended policy in which DOE explained its determination that Energy Information Administration's (EIA's) National Energy Modeling System (“NEMS”) is the most appropriate tool for its FFC analysis and its intention to use NEMS for that purpose. 77 FR 49701 (Aug. 17, 2012). NEMS is a public domain, multi-sector, partial equilibrium model of the U.S. energy sector
The inputs for determining the NPV of the total costs and benefits experienced by customers are (1) total annual installed cost, (2) total annual operating costs (energy costs and repair and maintenance costs), and (3) a discount factor to calculate the present value of costs and savings. DOE calculates net savings each year as the difference between the no-new-standards case and each standards case in terms of total savings in operating costs versus total increases in installed costs. DOE calculates operating cost savings over the lifetime of equipment shipped during the analysis period.
Energy cost savings, which are part of operating cost savings, are calculated using the estimated energy savings in each year and the projected price of the appropriate form of energy. To estimate energy prices in future years, DOE multiplied the average national marginal electricity prices by the forecast of annual national-average commercial or industrial electricity price changes in the Reference case from
DOE includes the cost of replacing failed lamps and ballasts over the course of the lifetime of the fixture. DOE assumed that lamps and ballasts were replaced at their rated lifetime. When replacing a ballast, DOE assumed the lamp was also replaced at the same time, independent of the timing of the previous lamp replacement. For more details see chapter 10 of the final determination TSD.
DOE also estimates the residual monetary value remaining in the lamp and ballast at the end of the fixture lifetime and applies it as a credit to operating costs (
In calculating the NPV, DOE multiplies the net savings in future years by a discount factor to determine their present value. For this final determination, DOE estimated the NPV of customer benefits using both a 3-percent and a 7-percent real discount rate. DOE uses these discount rates in accordance with guidance provided by the Office of Management and Budget (“OMB”) to Federal agencies on the development of regulatory analysis.
The following section addresses the results from DOE's analyses with respect to the considered energy conservation standards for MHLFs. It addresses the TSLs examined by DOE and the projected impacts of each of these levels. Additional details regarding DOE's analyses are contained in the final determination TSD supporting this document.
DOE analyzed the benefits and burdens of three TSLs for MHLFs. TSL 1 is composed of EL 1 for all equipment classes. TSL 2 is composed of the efficiency levels corresponding to the least efficient electronic ballast level for each equipment class, if any efficiency levels corresponding to an electronic ballast exist. TSL 3 is composed of the max-tech level for each equipment class. Table V.1 presents the TSLs and the corresponding efficiency levels that DOE has identified for potential amended energy conservation standards for MHLFs.
DOE analyzed the economic impacts on MHLF customers by looking at the effects that potential amended standards at each TSL would have on the LCC and PBP. These analyses are discussed in the following sections.
In general, higher-efficiency products affect consumers in two ways: (1) Purchase price increases and (2) annual operating costs decrease.
Table V.2 through Table V.13 show the LCC and PBP results for the ELs and TSLs considered for each equipment class, with indoor and outdoor installations aggregated together using equipment shipments in the analysis period start year (2025). The results provided here will differ from the LCC and PBP results from the NOPD due to updated data used for this final determination. Results for each equipment class are shown in two tables. In the first table, the simple payback is measured relative to the baseline product. For ELs having a higher first year's operating cost than that of the baseline, the payback period is “Never,” because the additional installed cost relative to the baseline is not recouped. In the second table, impacts are measured relative to the efficiency distribution in the no-new-standards case in the compliance year (see section IV.F.8 of this document). Because some customers purchase products with higher efficiency in the no-new-standards case, the average savings are less than the difference between the average LCC of the baseline product and the average LCC at each TSL. The savings refer only to customers who are affected by a standard at a given TSL. Those who already purchase equipment with efficiency at or above a given TSL are not affected. Customers for whom the LCC increases at a given TSL experience a net cost.
As discussed in section IV.F.9, EPCA establishes a rebuttable presumption that an energy conservation standard is economically justified if the increased purchase cost for a product that meets the standard is less than three times the value of the first-year energy savings resulting from the standard. In calculating a rebuttable presumption payback period for each of the considered ELs, DOE used discrete values, and, as required by EPCA, based the energy use calculation on the DOE test procedures for MHLFs. In contrast, the PBPs presented in section V.B.1.a were calculated using distributions that reflect the range of energy use in the field.
Table V.14 presents the rebuttable-presumption payback periods for the considered ELs for MHLFs. While DOE examined the rebuttable-presumption criterion, it considered whether the standard levels considered for this rule are economically justified through a more detailed analysis of the economic impacts of those levels, pursuant to 42 U.S.C. 6295(o)(2)(B)(i), that considers the full range of impacts to the consumer, manufacturer, Nation, and environment. The results of that analysis serve as the basis for DOE to definitively evaluate the economic justification for a potential standard level, thereby supporting or rebutting the results of any preliminary determination of economic justification.
Table V.14 reports very large rebuttable-presumption payback periods for some equipment class-efficiency level combinations. These payback periods are the result of very small operating cost savings under the rebuttable-presumption criterion compared to the increased installed cost of moving from EL 0 to the EL under consideration.
This section presents DOE's estimates of the national energy savings and the NPV of consumer benefits that would result from each of the TSLs considered as potential amended standards.
To estimate the energy savings attributable to potential amended standards for MHLFs DOE compared their energy consumption under the no-new-standards case to their anticipated energy consumption under each TSL. The savings are measured over the entire lifetime of products purchased in the 30-year period that begins in the first full year of anticipated compliance with amended standards 2025-2054. Table V.15 presents DOE's projections of the national energy savings for each TSL considered for MHLFs. The savings were calculated using the approach described in section IV.H.1 of this document.
OMB Circular A-4
DOE estimated the cumulative NPV of the total costs and savings for consumers that would result from the TSLs considered for MHLFs. In accordance with OMB's guidelines on regulatory analysis,
The NPV results based on the aforementioned 9-year analytical period are presented in Table V.18. The impacts are counted over the lifetime of products purchased in 2025-2054. As mentioned previously, such results are presented for informational purposes only and are not indicative of any change in DOE's analytical methodology or decision criteria.
The previous results reflect the use of a default trend to estimate the change in price for MHLFs over the analysis period (see section IV.H.2 of this document). DOE also conducted a sensitivity analysis that considered one scenario with a lower rate of price decline than the reference case and one scenario with a higher rate of price decline than the reference case. The results of these alternative cases are presented in appendix 10C of the final determination TSD. In the high-price-decline case, the NPV of consumer benefits is higher than in the default case. In the low-price-decline case, the NPV of consumer benefits is lower than in the default case.
For this final determination, DOE analyzed whether amended standards for MHLFs would be technologically feasible and cost effective. (42 U.S.C. 6295(m)(1)(A) and 42 U.S.C. 6295(n)(2)) EPCA mandates that DOE consider whether amended energy conservation standards for MHLFs would be technologically feasible. (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(1)(A) and 42 U.S.C. 6295(n)(2)(B)) DOE has determined that there are technology options that would improve the efficiency of MHLFs. These technology options are being used in commercially available MHLFs and therefore are technologically feasible. (See section IV.B for further information.) Hence, DOE has determined that amended energy conservation standards for MHLFs are technologically feasible.
EPCA requires DOE to consider whether energy conservation standards for MHLFs would be cost effective through an evaluation of the savings in operating costs throughout the estimated average life of the covered product/equipment compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered products/equipment which are/is likely to result from the imposition of an amended standard. (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(1)(A), 42 U.S.C. 6295(n)(2)(C), and 42 U.S.C. 6295(o)(2)(B)(i)(II)) As presented in the prior section, the average customer purchasing a representative MHLF would experience an increase in LCC at each evaluated standards case as compared to the no-new-standards case. The simple PBP for the average MHLF customer at most ELs is projected to be generally longer than the mean lifetime of the equipment, which further indicates that the increase in installed cost for more efficient MHLFs is not recouped by their associated operating cost savings. The NPV benefits at these TSLs are also negative for all equipment classes at 3-percent and 7-percent discount rates. Based on the previous considerations, DOE has determined that more stringent amended energy conservation standards for MHLFs cannot satisfy the relevant statutory requirements because such standards would not be cost effective as required under EPCA. (
Having determined that amended energy conservation standards for MHLFs would not be cost-effective, DOE did not further evaluate the significance of the amount of energy conservation under the considered amended standards because it has determined that the potential standards would not be cost-effective (and by extension, would not be economically justified) as required under EPCA. (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(1)(A); 42 U.S.C. 6295(n)(2); 42 U.S.C. 6295(o)(2)(B)).
This final determination has been determined to be not significant for purposes of Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993). As a result, OMB did not review this final determination.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed this final determination under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. DOE has concluded that amended energy conservation standards for metal halide lamp fixtures would not be cost effective (and by extension not economically justified). Because DOE is not amending the current energy conservation standards for MHLFs, DOE certifies that this final determination will not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared an FRFA for this final determination. DOE will transmit this certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).
Manufacturers of covered products must certify to DOE that their products comply with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment. (See generally 10 CFR part 429.) The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (“PRA”). This requirement has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 35 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. This final determination, which concludes that amended energy conservation standards for MHLFs would not be cost effective (and by extension, not economically justified) as required under the relevant statute, imposes no new information or recordkeeping requirements. Accordingly, clearance from the OMB is not required under the Paperwork Reduction Act. (44 U.S.C. 3501
Pursuant to the National Environmental Policy Act of 1969 (“NEPA”), DOE has analyzed this final determination in accordance with NEPA and DOE's implementing regulations (10 CFR part 1021). DOE has determined that this rule qualifies for categorical exclusion A4 because it is an interpretation or ruling in regards to an existing regulations and otherwise meets the requirements for application of a categorical exclusion. See 10 CFR 1021.410. Therefore, DOE has determined that promulgation of this rule is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA, and does not require an environmental assessment or an environmental impact statement.
E.O. 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. As this final determination does not amend the standards for MHLFs, there is no impact on the policymaking discretion of the States. Therefore, no further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of E.O. 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation (1) clearly specifies the preemptive effect, if any, (2) clearly specifies any effect on existing Federal law or regulation, (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction, (4) specifies the retroactive effect, if any, (5) adequately defines key terms, and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of E.O. 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final determination meets the relevant standards of E.O. 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan
This final determination does not contain a Federal intergovernmental mandate, nor is it expected to require expenditures of $100 million or more in any one year by the private sector. As a result, the analytical requirements of UMRA do not apply.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final determination would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), DOE has determined that this final determination would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at
E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
Because this final determination does not amend energy conservation standards for MHLFs, it is not a significant energy action, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on this final determination.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (“OSTP”), issued its Final Information Quality Bulletin for Peer Review (“the Bulletin”). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the Bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions.” 70 FR 2664, 2667.
In response to OMB's Bulletin, DOE conducted formal peer reviews of the energy conservation standards development process and the analyses that are typically used and prepared a report describing that peer review.
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this final determination prior to its effective date. The report will state that it has been determined that the final determination is not a “major rule” as defined by 5 U.S.C. 804(2).
The Secretary of Energy has approved publication of this final determination.
This document of the Department of Energy was signed on October 19, 2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary and Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class D airspace, establishes Class E airspace designated as an extension to a Class D surface area, and amends Class E airspace extending upward from 700 feet above the surface at Concord-Padgett Regional Airport, Concord, NC. The FAA is taking this action as a result of the Charlotte Class B Biennial Review. This action also updates the airport's name to Concord-Padgett Regional Airport (formerly Concord Regional Airport). In addition, this action updates the geographic coordinates of the airport to coincide with the FAA's database. This action also makes an editorial change replacing the term Airport/Facility Directory with the term Chart Supplement in the legal descriptions of associated Class D airspace. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) in the area.
Effective 0901 UTC, January 27, 2022. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
FAA Order JO 7400.11F, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Ave., College Park, GA 30337; Telephone (404) 305-6364.
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 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 establishes and amends Class D and E airspace in Concord, NC.
The FAA published a notice of proposed rulemaking in the
Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.
Class D and Class E airspace designations are published in Paragraphs 5000, 6004, and 6005, respectively, 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 Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends 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
The FAA is amending 14 CFR part 71 by amending the Class D airspace and Class E airspace extending upward from 700 feet above the surface at Concord-Padgett Regional Airport, Concord, NC, by updating the airport's name to Concord-Padgett Regional Airport, (formerly Concord Regional Airport), and updating the geographical coordinates to coincide with the FAA's database. In addition, this action amends Class E airspace extending upward from 700 feet above the surface at Concord-Padgett Regional Airport, Concord, NC, by increasing the radius to 8.8 miles (formerly 6.5 miles). This action also establishes Class E airspace designated as an extension to a Class D surface area airspace for Concord-Padgett Regional Airport within 1 mile each side of the 010° bearing from the Concord-Padgett Regional Airport, extending from the 4.0-mile radius to 6.3 miles northeast of the airport, and within 1 mile each side of the 190° bearing from the airport, extending from the 4.0-mile radius to 6.3 miles southwest from the airport. In addition, the FAA replaces the outdated term Airport/Facility Directory with the term Chart Supplement in the associated Class D airspace in the legal descriptions for Concord-Padgett Regional Airport.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 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.
That airspace extending upward from the surface to and including 3,200 feet MSL within a 4-mile radius of Concord-Padgett Regional Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from the surface within 1 mile each side of the 010° bearing from the Concord-Padgett Regional Airport, extending from the 4.0-mile radius to 6.3 miles northeast of the airport, and within 1 mile each side of the 190° bearing from the airport, extending from the 4.0-mile radius to 6.3 miles southwest of the airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from 700 feet above the surface within an 8.8-mile radius of the Concord-Padgett Regional Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace extending upward from 700 feet above the surface for Lake Norman Airpark, Mooresville, NC, by removing Lowe's Mooresville Heliport from the description as the heliport has closed, and airspace is no longer required. This action enhances the safety and management of controlled airspace within the national airspace system. Also, during the airspace review, the FAA determined a radius increase was required at Lake Norman Airpark. In addition, the FAA is removing unnecessary verbiage that references Class E airspace in Statesville, NC and Concord, NC. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.
Effective 0901 UTC, January 27, 2022. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
FAA Order JO 7400.11F, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Ave., College Park, GA 30337; Telephone (404) 305-6364.
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 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 amends the Class E airspace extending upward from 700 feet above the surface in Mooresville, NC, to support IFR operations in the area.
The FAA published a notice of proposed rulemaking in the
Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.
Class E airspace designations are published in Paragraph 6005 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 Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends 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
The FAA is amending 14 CFR part 71 by amending the Class E airspace extending upward from 700 feet above the surface at Lake Norman Airpark, Mooresville, NC, by removing Lowe's Mooresville Heliport from the description, as the heliport has closed, and airspace is no longer required. Also, the radius of the Lake Norman Airpark is increased to 9.3 miles (previously 6.3 Miles). In addition, the FAA is removing the unnecessary verbiage in the description referencing Class E airspace in Statesville, NC, and Concord, NC.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 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.
That airspace extending upward from 700 feet above the surface within a 9.3-radius of Lake Norman Airpark.
Bureau of Indian Affairs, Interior.
Final rule; correction.
This document corrects a typographical error in the preamble to the final rule that revised Bureau of Indian Affairs (BIA) regulations governing the Land Title and Records Office (LTRO) to reflect modernization of the LTRO. The correction clarifies that the LTRO provides documents to the agency, rather than to itself.
Effective October 25, 2021.
Elizabeth Appel, Director, Office of Regulatory Affairs & Collaborative Action, (202) 273-4680;
In rule document 2021-17377 at 86 FR 45631 in the issue of August 16, 2021, on page 45637, in the first column, the third full paragraph is corrected to read as follows:
The original publication contained a typographical error stating that LTRO would send the documents electronically in real time to the LTRO for correction.
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is establishing a temporary special local regulation on the waters offshore Oceanside and within Oceanside Harbor, California, during the Ironman 70.3 Oceanside marine event. This action is necessary to provide for the safety of the participants, crew, spectators, sponsor vessels of the triathlon, and general users of the waterway. This rule would prohibit persons and vessels from entering into, transiting through, anchoring, blocking, or loitering within the event area unless authorized by the Captain of the Port San Diego or a designated representative.
This rule is effective from 5:30 a.m. to 10:30 a.m., on October 30, 2021.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Commander John Santorum, Waterways Management, U.S. Coast Guard Sector San Diego, CA; telephone (619) 278-7656, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because we must establish this special local regulation by October 30, 2021. The Coast Guard was given short notice from the event sponsor that the date of the the event would differ from the existing annual marine event as outlined in 33 CFR 100.1101, Table 1 to § 100.1101, Item No. 2. Therefore, it is impracticable to publish an NPRM because we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. This regulation is necessary to ensure the safety of life on the navigable waters offshore Oceanside and within Oceanside Harbor during the marine event.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041 (previously 33 U.S.C. 1236). The Captain of the Port Sector San Diego (COTP) has determined that a large amount of swimmers offshore Oceanside and within Oceanside Harbor associated with the Ironman 70.3 Oceanside marine event on October 30, 2021, poses a potential safety concern. This rule is needed to protect persons, vessels, and the marine environment in the navigable waters offshore Oceanside and within Oceanside Harbor while the event is occurring.
This rule establishes a special local regulation from 5:30 a.m. to 10:30 a.m. on October 30, 2021. This special local regulation will cover all navigable waters, from surface to bottom, on a pre-determined course offshore Oceanside and within Oceanside Harbor, California, beginning at the starting point of the event at Oceanside Harbor Beach, proceeding southwest to the first turn marker, continuing northwest past the jetty, proceeding northeast through the harbor channel, then southeast into Oceanside Harbor before concluding at the finish line within Oceanside Harbor. The duration of the temporary special local regulation is intended to ensure the safety of vessels, event participants, and these navigable waters during the scheduled marine event. No vessel or person would be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative. The regulatory text appears at the end of this document.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, duration, and time-of-day of the regulated area. The affected portion of the navigable waterway offshore Oceanside and in Oceanside Harbor will be of very limited duration, during morning hours when vessel traffic is historically low and is necessary for safety of life to participants in the event. Moreover, the Coast Guard would make a post in the Local Notice to Mariners with details on the regulated area, as well as, issue a Safety Marine Information Broadcast over Channel 22A.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the special local regulation may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary special local regulation that will limit access to Oceanside Harbor and certain areas offshore Oceanside for 5 hours, from 5:30 a.m. until 10:30 a.m. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
46 U.S.C. 70041; 33 CFR 1.05-1.
(a)
(b)
(c)
(2) Vessels requiring entry into this regulated area must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 21A or by telephone at 619-278-7033.
(3) The COTP will provide notice of the regulated area through advanced notice via Local Notice to Mariners and Safety Marine Information Broadcasts on Channel 22A.
(d)
Coast Guard, Department of Homeland Security (DHS).
Final rule.
The Coast Guard is changing the operating schedule that governs the Florida East Coast (FEC) Railroad Bridge across the New River, mile 2.5, at Fort Lauderdale, Florida. This change will allow the drawbridge to operate on a more predictable schedule. This action should better serve the reasonable needs of both vessel and rail traffic.
This rule is effective November 24, 2021.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Ms. Jennifer Zercher, Bridge Management Specialist, Seventh Coast Guard District, telephone 305-415-6740, email
On January 23, 2020, the Coast Guard published a Test Deviation, with a request for comments, entitled “Drawbridge Operation Regulation; New River, Fort Lauderdale, FL” in the
On July 13, 2020, the Coast Guard published a notice of proposed rulemaking entitled “Drawbridge Operation Regulation; New River, Fort Lauderdale, FL” in the
On June 29, 2021, the Coast Guard published a supplemental notice of proposed rulemaking entitled “Drawbridge Operation Regulation; New River, Fort Lauderdale, FL” in the
The Coast Guard is issuing this rule under authority 33 U.S.C. 499.
The Florida East Coast (FEC) Railroad Bridge across the New River, mile 2.5, at Fort Lauderdale, Florida, is a single-leaf bascule railroad bridge with a four-foot vertical clearance at mean high water in the closed position. The operating schedule for the bridge set forth in 33 CFR 117.313(c).
Traffic on the waterway includes both commercial and recreational vessels. Brightline, with support from the bridge owner, Florida East Coast Railway (FECR), requested a change to the drawbridge operating schedule. Due to the increase in rail traffic, the current operating schedule no longer balances the needs of vessel and rail traffic.
Four comments were received. One commenter requested to know if the rulemaking on the operation of the bridge is tied to the train schedule for a fixed amount of crossings over the river. The rule does not consider the train schedules. The bridge is required to be maintained in the fully open-to-navigation position for vessels at all times, except during periods when it is closed for the passage of rail traffic, inspections and to perform periodic maintenance that has been authorized by the Coast Guard.
The second commenter is in support of the proposed rule but had recommendations regarding the technical language. The Coast Guard considered the recommendation to change paragraph (c)(3)(ii) to read “. . . on a quarterly basis or as otherwise required by this paragraph.” because the commenter felt it conflicted with paragraph (c)(7). The Coast Guard feels there is no conflict and it is unnecessary to add the additional language to paragraph (c)(3)(ii). However, after reviewing paragraph (c)(7), we will change “subsection” to “paragraph” in paragraph (c)(7)(i). The second recommendation was to include “the performance of periodic maintenance” in paragraph (c)(5). This paragraph states when the bridge owner shall contact the Coast Guard Captain of the Port Miami in the event of an operational failure or other emergencies impacting drawbridge operations. The commenter stated that if the periodic maintenance lasted longer than 60 minutes a violation of paragraph (c)(2) would occur. The performance of periodic maintenance is authorized by the Coast Guard in accordance with subpart A of 33 CFR part 117. When periodic maintenance is authorized, it is considered a temporary change to the drawbridge operating schedule, therefore, a violation of paragraph (c)(2) would not occur.
The third and fourth commenters provided joint comments. Both commenters support the proposed rule with the exception of the addition of “periodic maintenance” and the removal of “minor repairs”. They believe the term “periodic maintenance” introduces new ambiguity and the Coast Guard should consider alternate language provided in their comments. The commenters feel this regulation has developed into a unique regulatory regime and does not allow for routine and necessary operations of a railroad bridge, including inspections and minor repairs. The language in paragraph (c)(1) is regulatory language used in other railroad bridge operating schedules throughout the United States, and requires drawbridges be maintained in the fully open position at all times, except for rail traffic, inspections, and maintenance. The Coast Guard authorizes temporary deviations to drawbridge operating schedules in accordance with subpart A of 33 CFR part 117. These authorizations include but are not limited to periodic maintenance, minor repairs, and events not affecting the operation of the drawbridge but may require it to remain closed to navigation outside of its published drawbridge operating schedule. The Coast Guard feels the language proposed in the SNPRM in paragraph (c)(1) is the proper regulatory
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protesters.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the ability that vessels can continue to transit the bridge when trains are not crossing, at designated times throughout the day and vessels that are capable of transiting under the bridge, without an opening, to do so at any time. Vessels in distress and public vessels of the United States must be allowed to pass at any time or as soon as the train has cleared the bridge.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received zero comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section V. A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). The Coast Guard has determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule promulgates the operating regulations or procedures for drawbridges and is categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.
Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Bridges.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; and Department of Homeland Security Delegation No. 0170.1.
(c) The draw of the Florida East Coast (FEC) Railroad Bridge across the New River, mile 2.5, at Fort Lauderdale shall operate as follows:
(1) The drawbridge shall be maintained in the fully open-to-navigation position for vessels at all times, except during periods when it is
(2) The drawbridge shall not be closed to navigation for more than 60 consecutive minutes.
(3) Notwithstanding paragraph (c)(1) of this section, the drawbridge shall open and remain open to navigation for a fixed 10-minute period each hour from 5 a.m. to 11:59 p.m., except that the drawbridge shall be open at the following times which shall serve as the hourly fixed 10-minute period:
(i) Additionally, in each hour from 12:00 p.m. to 2:59 p.m., the drawbridge shall open and remain open to navigation for an additional 10-minute period.
(ii) The 10-minute opening periods shall be published on a quarterly basis by the drawbridge owner and reflected on the drawbridge owner's website and mobile application.
(4) The drawbridge shall have a drawbridge tender onsite at all times who is capable of physically tending and operating the drawbridge by local control, if necessary, or when ordered by the Coast Guard.
(i) The drawbridge tender shall provide estimated times of drawbridge openings and closures, upon request.
(ii) Operational information will be provided 24 hours a day on VHF-FM channels 9 and 16 or by telephone at (305) 889-5572. Signs shall be posted visible to marine traffic and displaying VHF radio contact information, website and application information, and the telephone number for the bridge tender.
(5) In the event of a drawbridge operational failure, or other emergency circumstances impacting normal drawbridge operations, the drawbridge owner shall immediately notify the Coast Guard Captain of the Port Miami and provide an estimated time of repair and return to normal operations.
(6) A drawbridge log shall be maintained including drawbridge opening and closing times. The drawbridge log should include reasons for those drawbridge closings that interfere with scheduled openings in this section. This drawbridge log shall be maintained by the drawbridge owner and upon request, be provided to the Coast Guard.
(7) A website and mobile application shall be maintained by the drawbridge owner and publish:
(i) Drawbridge opening times required by this paragraph (c);
(ii) Timely updates to schedules; including but not limited to impacts due to emergency circumstances, repairs, and inspections;
(iii) At least 24-hour advance notice for each schedule in order to facilitate planning by maritime operators; and
(iv) To the extent reasonably practicable, at least 60-minutes advance notice of schedule changes or delays.
(8) The drawbridge shall display the following lights:
(i) When the drawbridge is in the fully open position, green lights shall be displayed to indicate that vessels may pass.
(ii) When rail traffic approaches the block signal, the lights shall go to flashing red, then the drawbridge lowers and locks, and the lights shall remain flashing red.
(iii) After the rail traffic has cleared the drawbridge, the drawbridge shall open and the lights return to green.
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for the navigable waters in the vicinity of the General Dynamics NASSCO shipyard in San Diego Bay, San Diego, CA, during the launch of the USNS Harvey Milk. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards associated with the launching and subsequent berthing of the USNS Harvey Milk. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port San Diego.
This rule is effective from 9 a.m. through 10:30 a.m., on November 6, 2021.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Commander John Santorum, Waterways Management, U.S. Coast Guard Sector San Diego, CA; telephone 619-278-7656, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable to publish an NPRM because the Coast Guard must establish this safety zone by November 6, 2021. This urgent safety zone is required to protect the maritime public and the surrounding waterways from hazards associated with the launching of the USNS Harvey Milk. The Coast Guard lacks sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port San Diego (COTP) has determined that potential hazards associated with launching of the USNS Harvey Milk on November 6, 2021 will be a safety concern for anyone in the vicinity of the General Dynamics NASSCO shipyard, San Diego Bay, San Diego, CA. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the USNS Harvey Milk is being launched and towed to a nearby berth.
This rule establishes a safety zone from 9 a.m. until 10:30 a.m., on November 6, 2021. The safety zone will cover all navigable waters of the San Diego Bay, CA created by connecting the following points: Beginning at 32°41.39′ N, 117°08.66′ W (Point A); thence running southwesterly to 32°41.24′ N, 117°09.05′ W (Point B); thence running southeasterly to 32°41.05′ N, 117°08.73′ W (Point C); thence running northeasterly to 32°41.20′ N, 117°08.34′ W (Point D); thence running northwesterly to the beginning point. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the USNS Harvey Milk is being launched, then towed to berth. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location and limited duration of the safety zone. This safety zone impacts a small designated area of the San Diego Bay for a very limited period during the weekend when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less than two hours that will prohibit entry within certain navigable waters of San Diego Bay, San Diego, CA in the vicinity of the General Dynamics NASSCO shipyard. It is categorically excluded from further
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.2.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's representative by VHF Channel 16. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for the navigable waters of the Southwest shores of Oahu, Hawaii, near Barbers Point. The temporary safety zone encompasses all waters extending 1 nautical mile in all directions from position 21°16′40″ N, 158°01′28″ W. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards associated with ongoing operations to salvage a downed aircraft in this area. Entry of vessels or persons in this zone is prohibited unless specifically authorized by the Captain of the Port (COTP) Honolulu.
This rule is effective without actual notice from October 25, 2021, through November 6, 2021, at midnight. For the purposes of enforcement, actual notice will be used from October 9, 2021, at 12:01 a.m. until October 25, 2021.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Commander Joshua Williams, Waterways Management Division, U.S. Coast Guard Sector Honolulu at (808) 541-2359 or
On July 2, 2021, Transair 810, a cargo plane, crashed off the Southwest shores of Oahu, Hawaii, near Barbers Point.
On July 2, 2021, the Coast Guard issued a temporary rule to establish a safety zone extending 3 nautical miles in all directions from position 21°16′36″ N, 158°01′42″ W to protect personnel, vessels, and the marine environment from potential hazards associated with ongoing operations to salvage a downed aircraft in the area. That rule expired at 12:00 a.m. on July 30, 2021. The Coast Guard is issuing this rule so that salvage operations can continue.
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because immediate action is needed to facilitate an emergency salvage operation. Due to the limited capabilities nationally and limited resources locally, the logistics and planning of such a salvage operations does not allow for public comment, and therefore publishing a NPRM is impracticable and contrary to public interest.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). On July 2, 2021, the Coast Guard was informed of a cargo plane crash off the Southwest shores of Oahu, Hawaii, near Barbers Point. The Coast Guard COTP Sector Honolulu has determined that the potential hazards associated with the salvage operations constitute a safety concern for anyone within the designated safety zone. This rule is necessary to protect personnel, vessels, and the marine environment within the navigable waters of the safety zone during ongoing salvage operations.
This rule is effective from October 9, 2021, at 12:01 a.m. through November 6, 2021, at midnight, or until salvage operations are complete, whichever is earlier. If the safety zone is terminated prior to 12:00 a.m. on November 6, 2021, the Coast Guard will provide notice via a broadcast notice to mariners. The temporary safety zone encompasses all waters extending 1 nautical mile in all directions around the location of ongoing salvage operations at position 21°16′40″ N, 158°01′28″ W. This zone extends from the surface of the water to the ocean floor. The zone is intended to protect personnel, vessels, and the marine environment in these navigable waters from potential hazards associated with the salvage operations of one downed aircraft in this area. No vessel or person will be permitted to enter the safety zone absent the express authorization of the COTP or their designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, and duration, of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of the navigable waters off the Southwest shores of Oahu, Hawaii, near Barbers Point where vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator. This safety zone is limited in size and duration, and mariners may request to enter the zone by contacting the COTP.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 28 days, or until salvage
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.2.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP at the Command Center telephone number (808) 842-2600 and (808) 842-2601, fax (808) 842-2642 or on VHF channel 16 (156.8 Mhz). Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for all navigable waters within 4000 yards of a line drawn from Stan Sayres Memorial Hydroplane Pits downward to the Adams Street Boat Ramp on Lake Washington. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards in the vicinity of the Stan Sayres Memorial Park and Boat Launch and Adams Street Boat Ramp associated with test trials of a hydroplane race boat. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Sector Puget Sound or their Designated Representative.
This rule is effective from 10 a.m. through 2 p.m. on November 9, 2021.
If you have questions on this rule, call or email Mr. Rob Nakama, Sector Puget Sound Waterways Management Division, U.S. Coast Guard; telephone 206-217-6089, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard received notification of the test trials on October 12, 2021, and must take immediate action to protect the public from potential hazards by the operation of the hydroplane. It is impracticable to publish an NPRM because we must establish this safety zone by November 9, 2021.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Puget Sound (COTP) has determined that potential hazards exist with the test trials of a high speed watercraft on Lake Washington. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone from potential hazards posed by the hydroplane's operation.
This rule establishes a safety zone from 10 a.m. through 2 p.m. on
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the fact that the safety zone created by this rule is limited in size and duration. Vessel traffic will be able to safely transit around this safety zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 4 hours that will prohibit entry within the marked area off the Stan Sayres Memorial Hydroplane Pits and Adams Street Boat Ramp, located on Lake Washington. It is categorically excluded from further review under paragraph L60(c) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.2.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's representative by VHF Channel 16. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving the Juneau, Mendenhall Valley, Alaska (AK) limited maintenance plan (LMP) submitted on November 10, 2020, by the Alaska Department of Environmental Conservation (ADEC or “the State”). This plan addresses the second 10-year maintenance period after redesignation for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM
This final rule is effective November 24, 2021.
The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2020-0649. All documents in the docket are listed on the
Christi Duboiski, EPA Region 10, 1200 Sixth Avenue (Suite 155), Seattle, WA 98101, at (360) 753-9081, or
Throughout this document wherever “we” or “our” is used, it refers to the EPA.
On November 10, 2020, ADEC submitted to the EPA a second 10-year PM
We proposed to approve the Juneau, Mendenhall Valley second 10-year LMP on August 11, 2021 (86 FR 43984). The reasons for our approval are included in that proposal and will not be restated here. The public comment period for our proposed action closed on September 10, 2021. We received no public comments. Therefore, we are finalizing our rulemaking as proposed.
In this final action, the EPA is approving the State's second 10-year LMP for the Juneau, Mendenhall Valley area, submitted on November 10, 2020, as satisfying the requirements of section 175A of the CAA.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this 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
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and it will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 27, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The addition and revision read as follows:
(e) * * *
National Endowment for the Arts, National Foundation on the Arts and the Humanities.
Final rule; removal of regulations.
This document rescinds the National Endowment for the Arts' rule relating to the issuance of guidance documents.
This rule is effective on October 25, 2021.
Daniel Fishman, Assistant General Counsel, National Endowment for the Arts, 400 7th Street SW, Washington, DC 20506;
On August 28, 2020, the National Endowment for the Arts (NEA) published an interim final rule governing the issuance of guidance documents entitled “Processes and Procedures for Issuing Guidance Documents” (85 FR 53186). The rule implemented the directives set forth in Executive Order (E.O.) 13891 of October 9, 2019 (Promoting the Rule of Law Through Improved Agency Guidance Documents).
E.O. 13992 of January 20, 2021 (Revocation of Certain Executive Orders Concerning Federal Regulation), revokes E.O. 13891 and directs the heads of agencies to promptly take steps to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof implementing or enforcing E.O. 13891, as appropriate and consistent with applicable law, including the Administrative Procedure Act, 5 U.S.C. 551
This rule incorporates requirements of E.O. 13992 and the NEA's existing internal policy and procedures into the CFR. Therefore, in accordance with 5 U.S.C. 553, there is good cause for this rule of Agency organization, procedure, or practice, to be enacted without notice and comment. See 5 U.S.C. 553(b)(A).
This rule is an internal rule of agency procedure and is not a significant regulatory action under Executive Order 12866.
As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605 (b)), the NEA certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities.
For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any Federal mandate that may result in increased expenditures in either Federal, state, local, or tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector.
The rule does not contain any information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 e
Executive Order 13132, Federalism, prohibits an agency from publishing any rule that has federalism implications if the rule imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This rule does not have any federalism implications, as described above.
This action pertains to agency management, personnel, and organization and does not substantially affect the rights or obligations of nonagency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply. However, for each final guidance document issued pursuant to these regulations and adopted by the NEA, it will submit appropriate reports to Congress and the Government Accountability Office (GAO) and comply with the procedures specified by 5 U.S.C. 801.
Administrative practice and procedure.
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the new information collection associated with the Commission's
The amendment to § 90.372 published at 86 FR 23281, May 3, 2021, is effective October 25, 2021.
Jamie Coleman, Office of Engineering and Technology Bureau, at (202) 418-0530, or email:
For additional information concerning the Paperwork Reduction Act information collection requirements, contact Nicole Ongele at (202) 418-2991 or
This document announces that, on October 4, 2021, OMB approved, for a period of three years, the new information collection requirement relating to the DSRCS Notification Requirement rule contained in the Commission's
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on October 4, 2021, for the information collection requirement contained in the Commission's new rule in 47 CFR part 90.
Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1293.
The foregoing is required by the Paperwork Reduction Act of 1995, Public Law 10413, October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
The provisions in 47 CFR 90.372 require DSRC licensees to notify the Commission that they have ceased operations in the 5.850-5.895 GHz sub-band.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; emergency action extended.
This temporary rule extends emergency measures that allow at-sea Pacific whiting processing vessels to operate as both a mothership and a catcher-processor during the 2021 Pacific whiting fishery. These emergency measures were originally authorized until November 10, 2021. This temporary rule extends the emergency measures through December
The expiration date of the emergency rule published May 14, 2021 (86 FR 26439), is extended to December 31, 2021. The amendments in this temporary rule are effective October 25, 2021.
Background information and analytical documents are available at the NMFS West Coast Region website at:
Lynn Massey, phone: 562-436-2462, or email:
The regulations implementing the Pacific Coast Groundfish Fishery Management Plan (FMP) prohibit processing vessels in the at-sea Pacific whiting fishery from operating as both a mothership (MS) and catcher processor (C/P) during the same calendar year. C/P vessels conduct both harvesting and processing catch at-sea, while MS vessels solely process catch delivered by other vessels (referred to as catcher vessels). By design, some MS vessels are built solely to process catch delivered by other vessels while at-sea, whereas C/P vessels are capable of harvesting catch and receiving deliveries from catcher vessels. Because of this, some processing vessels are able to switch between the C/P and MS sectors, while other vessels are not. To help ensure market stability in the separate sectors, current regulations do not allow processing vessels to switch between the MS and C/P sectors in a single calendar year. Under existing restrictions, a decision to operate a processing vessel as a C/P in response to the ongoing pandemic would preclude the same vessel from operating as an MS for the remainder of the 2021 fishing year, and vice versa. Catcher vessels in the at-sea whiting sector rely on MS vessels to accept delivery of their catch and, as a result, the amount of whiting these vessels can harvest is limited by the availability of at-sea processing vessels in the MS sector. Losing an MS processing vessel would prevent catcher vessels from harvesting their 2021 Pacific whiting allocations. The remaining processing vessels participating in the MS sector would not possess the capacity to receive deliveries from all catcher vessels for the 2021 Pacific whiting season.
In 2020, NMFS issued an emergency rule (85 FR 37027, June 19, 2020) to allow vessels to operate as an MS and a C/P in the same year in response to industry requests and a Pacific Fishery Management Council (Council) recommendation. During the 2020 whiting season, several at-sea processing vessels experienced COVID-19 outbreaks, forcing them to halt operations to prevent spreading infection to additional vessels and shorebased facilities. COVID-19 outbreaks and resulting shutdowns increased operational costs and caused foregone opportunities in the at-sea whiting fishery. In 2020, five MS permits were used to process MS allocations. The 2020 emergency action (85 FR 37027, June 19, 2020) provided temporary operational flexibility for the at-sea sector for 180 days and expired on December 16, 2020. However, it was unforeseen when the Council made its recommendation in 2020 how long the COVID-19 pandemic would last, how COVID-19 disease variants would emerge, and when vaccination efforts would be complete.
During the March 2021 Council meeting, industry members from the MS sector submitted a letter to the Council requesting action to continue addressing this issue. In their letter, industry members estimated that the loss of one MS processing vessel would leave approximately 24 percent of the MS sector allocation unharvested. The Council Groundfish Advisory Panel (GAP) supported the industry statement and estimated economic impacts that would result from lost at-sea processing capacity. The Council's Groundfish Management Team (GMT) provided additional analysis showing that compared to 2016-2019 fishing years, the proportion of whiting harvested in 2020 decreased by 13 percent in the MS sector and 2 percent in the C/P sector. The GMT's analysis showed that these decreases likely reflected COVID-19 impacts, including a lack of processing vessels available to catcher vessels due to attempts to minimize the spread of COVID-19. Due to the continued risk to at-sea whiting vessels and loss of processing capacity should a COVID-19 outbreak occur onboard a processing vessel, the Council GAP and GMT advisory bodies recommended the Council take emergency action to allow available vessels to operate as both types of processing vessels for the 2021 fishing year to mitigate potential economic hardship.
On March 9, 2021, the Council voted to request that NMFS initiate an emergency action to temporarily allow any eligible MS and C/P to operate as both types of processing vessel during the 2021 Pacific whiting season. This action was not an extension of the 2020 emergency rule (85 FR 37027, June 19, 2020), but rather a new emergency rule for the 2021 Pacific whiting fishing year. Accordingly, on May 14, 2021, NMFS published a temporary emergency rule (86 FR 26439) granting the Council's recommendation. NMFS held a public comment period on the May 2021 Emergency rule (86 FR 26439) for 30 days from May 14, 2021, to June 14, 2021, and received no comments. Under the May 2021 temporary emergency rule, vessels were not required to declare which sector they would operate in for the year at the beginning of the season. This temporary emergency action also allowed at-sea Pacific whiting processing vessels to switch operations for 180 days after publication (
Because there is still continual risk to at-sea whiting vessels and loss of processing capacity due to the ongoing COVID-19 pandemic, NMFS is now extending these emergency measures as authorized under section 305(c)(3) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). For additional explanation on the rationale and effects of this emergency rule extension, see the original emergency rule published on May 14, 2021 (86 FR 26439).
NMFS is extending the original emergency regulations in the May 14, 2021 rule (86 FR 26439). This emergency action extension removes
NMFS is issuing an extension of this emergency rule pursuant to section 305(3)(c) of the Magnuson-Stevens Act. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause under 5 U.S.C. 553(b)(B) of the Administrative Procedure Act (APA) that it is unnecessary, impracticable, and contrary to the public interest to provide for any additional prior notice and opportunity for the public to comment. As more fully explained above, the reasons justifying promulgation of this rule on an emergency basis, coupled with the fact that the public has had the opportunity to comment on the original emergency rule, make solicitation of additional comment unnecessary, impractical and contrary to the public interest. This action is needed immediately to enable necessary operational flexibility to harvest the United States' allocation of whiting. NMFS is implementing this extension of an emergency action to continue to reduce the impact of potential health issues caused by COVID-19 outbreaks that may impact harvesting and processing. For the reasons stated above, the AA also finds good cause to waive the 30-day delay in effective date of this temporary rule under 5 U.S.C. 553(d)(3).
This action is being taken pursuant to the emergency provision of Magnuson-Stevens Act and is exempt from Office of Management and Budget (OMB) review.
This temporary rule references a collection-of-information requirement that is subject to review and approval by OMB under the Paperwork Reduction Act. This requirement was approved by OMB under Control Number 0648-0573. This temporary rule does not modify this collection-of-information requirement. The Regulatory Flexibility Act does not apply to this emergency rule because prior notice and opportunity for public comment is not required.
The extension of this emergency action includes record keeping and reporting requirements previously approved by the Office of Management and Budget (OMB) under OMB Control Number 0648-0573: Expanded Vessel Monitoring System (VMS) Requirements for the Pacific Groundfish Fishery. Prior to leaving port, an at-sea Pacific whiting processing vessel must declare whether it will be operating in the MS sector or the C/P sector for each trip. Vessels in fisheries off West Coast states must declare through VMS the gear type and sector in which they will participate, including the limited entry midwater trawl and Pacific whiting MS and C/P sectors, as specified in existing groundfish regulations at 50 CFR 660.13(d)(4)(iv)(A). The number of declaration reports the vessel operator is required to submit to NMFS would not change under this action. In addition, this action does not change existing recordkeeping and reporting requirements. Therefore, no entity would be subject to new reporting requirements under this emergency action.
Fisheries, Fishing, and Indian Fisheries.
For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:
16 U.S.C. 1801
(b) * * *
(4) * * *
(vii) * * *
(D)
(d) * * *
(3) * * *
(i) Effective October 25, 2021 until December 31, 2021, notwithstanding any other section of this part, a vessel that was used to fish in the C/P fishery may be used to receive and process catch as mothership in the same calendar year, but not on the same fishing trip.
(e) * * *
(3) * * *
(i) Effective October 25, 2021 until December 31, 2021, notwithstanding any other section of this part, catcher-processor vessels and motherships are exempt from the prohibition in this paragraph (e)(3).
(b) * * *
(1) * * *
(i) * * *
(D) Under emergency measures effective October 25, 2021 until December 31, 2021, notwithstanding any other section of this part, a vessel may operate as both an MS and a C/P during the 2021 Pacific whiting primary season, but not on the same fishing trip.
(2) * * *
(ii) * * *
(B) * * *
(
(f) * * *
(1) * * *
(iii)
(2) * * *
(i) * * *
(A)
(b) * * *
(1) * * *
(i) * * *
(D) Effective October 25, 2021 until December 31, 2021, notwithstanding any other section of this part, a vessel may operate as both an MS and a C/P during the 2021 Pacific whiting primary fishing season, but not on the same fishing trip.
(ii) * * *
(A) * * *
(
(e) * * *
(1) * * *
(iii) * * *
(A)
(2) * * *
(i) * * *
(A)
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish United States Area Navigation (RNAV) route T-390 in the vicinity of St. Paul Island, 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 9, 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-2021-0859; Airspace Docket No. 19-AAL-57 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-2021-0859; Airspace Docket No. 19-AAL-57) 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-2021-0859; Airspace Docket No. 19-AAL-57.” 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-390 to offer alternate routing for Colored Federal airway R-99. The proposed route would provide lower GNSS MEAs while ensuring continuous two-way VHF communications for the entirety of the route. Additionally, the proposed route would provide an RNAV waypoints (WP) ZEKTI for Iliamna, AK, (ILI); WANKI for St Paul Island, AK, (SPY); ALUET for Dutch Harbor, AK, (DUT) NDB in anticipation of the future decommissioning schedule.
The FAA is proposing an amendment to 14 CFR part 71 to establish RNAV route T-390 in the vicinity of St. Paul Island, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. The proposed route is described below.
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 regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
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.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish United States Area Navigation (RNAV) route T-385 in the vicinity of Kodiak, 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 9, 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-2021-0860; Airspace Docket No. 19-AAL-54 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-2021-0860; Airspace Docket No. 19-AAL-54) 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-2021-0860; Airspace Docket No. 19-AAL-54.” 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
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-385 to offer alternate routing for Colored Federal airway B-12. The proposed route would provide lower GNSS MEAs while ensuring continuous two-way VHF communications for the entirety of the route. Additionally, the proposed route would provide an RNAV waypoint (WP) ZEKTI for Iliamna (ILI), AK, NDB in anticipation of the future decommissioning schedule.
The FAA is proposing an amendment to 14 CFR part 71 to establish RNAV route T-385 in the vicinity of Kodiak, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. The proposed route is described below.
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 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 regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
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.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish United States Area Navigation (RNAV) route T-382 in the vicinity of Hooper Bay, 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 9, 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,
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-2021-0857; Airspace Docket No. 19-AAL-51) 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-2021-0857; Airspace Docket No. 19-AAL-51.” 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-382 to offer alternate routing while providing a lower MEA over more favorable terrain for Colored Federal airway G-15 and Alaskan VHF Omnidirectional Radar (VOR) Federal airways V-496 and V-510 from Hooper Bay, AK, (HPB) VOR/Distance Measuring Equipment (VOR/DME) to McGrath, AK, (MCG) VOR and Tactical Air Navigational System (VORTAC). The proposed route would provide
The FAA is proposing an amendment to 14 CFR part 71 to establish RNAV route T-382 in the vicinity of Big Lake, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. The proposed route is described below.
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 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 regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
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:
1. The authority citation for part 71 continues to read 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.
2. The incorporation by reference in 14 CFR 71.1 of FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021, is amended as follows:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class D airspace, Class E surface area, and Class E airspace extending upward from 700 feet above the surface for Columbus Airport and Lawson Army Air Field (AAF), Fort Benning, Columbus, GA. This action would merge Columbus Airport and Lawson AAF (Fort Benning) Class D airspace and Class E surface area airspace into one header under FAA Order JO 7400.11 and removes the header Columbus Lawson AAF under FAA Order JO 7400.11. The Columbus Airport's Class D airspace would be amended by updating the name of Columbus Airport, formerly Columbus Metropolitan Airport, and updating the name of Lawson Army Airfield (Fort Benning), formerly Columbus Lawson AAF; the Lawson AAF (Fort Benning) Class D would be amended by establishing an extension to the southeast. This action would establish Class E airspace designated as an extension to a Class D surface area for Columbus Airport, Columbus, GA. The Columbus Airport Class E surface area extension would be eliminated, and Lawson AAF (Fort Benning) Class E surface area would be amended by establishing an extension to the southeast. Columbus Class E airspace extending upward from 700 feet above the surface and Lawson AAF (Fort Benning) Class E airspace extending upward from 700 feet above the surface would be amended by increasing the radii and removing the Lawson Very High Frequency Omnidirectional Range with Distance Measuring Equipment (VOR/DME) and Lawson Localizer (LOC) from the description. This action would also make an editorial change replacing the term Airport/Facility Directory with the term Chart Supplement in the legal descriptions of associated Class D and Class E surface area. In addition, this action would also
Comments must be received on or before December 9, 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 20590-0001; Telephone: (800) 647-5527, or (202) 366-9826. You must identify the Docket No. FAA-2021-0589; Airspace Docket No. 21-ASO-23, 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
John Goodson, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Avenue, College Park, GA 30337; Telephone (404) 305-5966.
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 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 amend Class D airspace, Class E airspace, and establish Class E airspace in Columbus, GA, to support IFR operations in the area.
Interested persons are invited to comment on 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 (Docket No. FAA-2021-0589 and Airspace Docket No. 21-ASO-23) and be submitted in triplicate to DOT Docket Operations (see
Persons 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-2021-0589; Airspace Docket No. 21-ASO-23.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this document may be changed in light of the 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 the
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
The FAA proposes an amendment to 14 CFR part 71 to amend Class D, Class E surface area, and Class E airspace extending upward from 700 feet above the surface at Columbus Airport, Columbus, GA and Lawson AAF (Fort Benning), Columbus, GA. This action would merge Columbus Airport and Lawson AAF (Fort Benning) Class D airspace and Class E surface area airspace into one header under FAA Order JO 7400.11, and removes the header Columbus Lawson AAF under FAA Order JO 7400.11. This action would also establish Class E airspace designated as an extension to a Class D surface area at Columbus Airport, Columbus, GA. The Columbus Airport Class D would be amended by eliminating the extension to the southwest and updating the name to Columbus Airport (previously Columbus Metropolitan Airport). This action would also make the editorial change replacing the term Airport/Facility Directory with the term Chart Supplement in the legal description.
The Lawson AAF (Fort Benning) Class D would be amended by establishing an extension within 1.0 mile each side of the 145° bearing from the AAF extending from the 5.2-mile radius to 6.8 miles southeast of the AAF, and updating the name to Lawson AAF (Fort Benning), previously Columbus Lawson AAF. This action would also make the editorial change replacing the term Airport/Facility Directory with the term Chart Supplement in the legal description. In addition, this action would also update the geographic coordinates to coincide with the FAA's database.
The Columbus Airport Class E surface area would be amended by eliminating
The Lawson AAF (Fort Benning) Class E surface area would be amended by establishing an extension within 1.0 mile each side of the 145° bearing from the AAF extending from the 5.2-mile radius to 6.8 miles southeast of the AAF. This action would also make an editorial change replacing the term Airport/Facility Directory with the term Chart Supplement in the legal description. In addition, this action would also update the geographic coordinates to coincide with the FAA's database.
The Columbus, GA Class E airspace designated as an extension to a Class D surface area at for Columbus Airport would be established by adding that airspace extending upward from the surface within 1 mile each side of the 234° bearing from the airport extending from the 4.4-mile radius to 7.1 miles southwest of the airport.
The Columbus, GA Class E airspace extending upward from 700 feet above the surface would be amended by increasing the radius of Columbus Airport to 9.6 miles, previously 6.8 miles, and eliminating the extension to the southeast.
The Lawson AAF (Fort Benning) Class E airspace radius would increase to 9.3 miles, (previously 7.6 miles), eliminating the Lawson VOR/DME and Lawson LOC from the description, adding the airspace within 3.8 miles each side of Lawson AAF (Fort Benning) 341° bearing from the AAF extending from the 9.3-mile radius to 15.2 miles northwest of the AAF, and 4.1 miles each side of the Lawson AAF (Fort Benning) 145° bearing from the AAF extending from the 9.3-mile radius to 10.6 miles southeast of the AAF.
Class D and E airspace designations are published in Paragraphs 5000, 6002, 6004, and 6005, respectively, 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 Class D and E airspace designations listed in this document will be published subsequently in the Order.
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 regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
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.
That airspace extending upward from the surface to and including 2,900 feet MSL within a 4.4-mile radius of the Columbus Airport; and that airspace extending upward from the surface to and including 2,700 feet MSL within a 5.2-mile radius of Lawson Army Airfield (AAF) and that airspace within 1 mile each side of the 145° bearing from the AAF extending from the 5.2-mile radius to 6.8 miles southeast of the AAF. This Class D airspace is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from the surface within a 4.4-mile radius of Columbus Airport; and that airspace within a 5.2-mile radius of Lawson AAF (Fort Benning) and that airspace within 1 mile each side of the 145° bearing from the AAF extending from the 5.2-mile radius to 6.8 miles southeast of the AAF. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen.The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from the surface within 1 mile each side of the 234° bearing from the airport extending from the 4.4-mile radius to 7.1 miles southwest of the airport.
(Lat. 32°19′54″ N, long. 84°59′14″ W)
That airspace extending upward from 700 feet above the surface within a 9.6-mile radius of Columbus Airport; and within a 9.3-mile radius of Lawson AAF (Fort Benning), and within 3.8 miles each side of Lawson AAF (Fort Benning) 341° bearing from the AAF extending from the 9.3-mile radius to 15.2 miles northwest of the AAF, and 4.1 miles each side of the Lawson AAF (Fort Benning) 145° bearing from the AAF extending from the 9.3-mile radius to 10.6 miles southeast of the AAF.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish United States Area Navigation (RNAV) route T-384 in the vicinity of Eagle, 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 9, 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-2021-0858; Airspace Docket No. 19-AAL-53 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-2021-0858; Airspace Docket No. 19-AAL-53) 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-2021-0858; Airspace Docket No. 19-AAL-53.” 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
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-384 to offer routing in an area where published airways do not exist. The proposed route GNSS MEAs will ensure terrain/obstacle clearance with continuous two-way VHF communications while also providing instrument approach connectivity and access to Eagle Airport (PAEG).
The FAA is proposing an amendment to 14 CFR part 71 to establish RNAV route T-384 in the vicinity of Eagle, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. The proposed route is described below.
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 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 regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
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.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish United States Area Navigation (RNAV) route T-396 in the vicinity of Nome, 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 9, 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,
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-2021-0863; Airspace Docket No. 21-AAL-21) 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-2021-0863; Airspace Docket No. 21-AAL-21.” 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-396 to offer alternate routing for Colored Federal airway G-7 and VHF omnidirectional range (VOR) Federal airway V-452 between Nome, AK, (OME) and Galena, AK, (GAL). The pending decommissioning of the Moses Point, AK, (MOS) VOR will force cancellation of V-452 between OME and GAL, leaving G-7 as the only IFR route to navigate between the two. The proposed route would provide an RNAV
The FAA is proposing an amendment to 14 CFR part 71 to establish RNAV route T-396 in the vicinity of Nome, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. The proposed route is described below.
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 regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
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.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish United States Area Navigation (RNAV) route T-381 in the vicinity of Big Lake, 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 9, 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-2021-0856; Airspace Docket No. 19-AAL-50 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
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-2021-0856; Airspace Docket No. 19-AAL-50) 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-2021-0856; Airspace Docket No. 19-AAL-50.” 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-381 to offer alternate routing providing a lower MEA over more favorable terrain for RNAV route T-227 and Alaskan VHF Omnidirectional Radar (VOR) Federal airway V-438 from Big Lake, AK, (BGQ) to Fairbanks, AK, (FAI). Additionally, with the pending decommissioning of Yukon River, AK, (FTO) NDB, T-381 would provide an alternative to Colored Federal airway B-26 and V-438 from FAI to FTO.
The FAA is proposing an amendment to 14 CFR part 71 to establish RNAV route T-381 in the vicinity of Big Lake, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. The proposed route is described below.
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 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 regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have 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.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to change the operating schedule that governs the California Department of Transportation (Route 4) highway bridge, across Old River, mile 14.8, between Victoria Island and Byron Tract, California. This action is proposed due to the infrequent amount of vessels requiring drawbridge openings on the waterway and will reduce unnecessary staffing of the drawbridge during periods of navigational inactivity while continuing to meet the reasonable needs of navigation. The proposed rulemaking would require vessels to provide a four-hour advance notification for a bridge opening. We invite your comments on this proposed rulemaking.
Comments and related material must reach the Coast Guard on or before December 27, 2021.
You may submit comments identified by docket number USCG-2021-0181 using Federal e-Rulemaking Portal at
See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Carl T. Hausner, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510-437-3516, email
Old River is a tidal distributary of the San Joaquin River that flows for about 40 miles and is navigable in its entirety. It is located in the southern portion of the San Joaquin River Delta. There are approximately 10 marinas on Old River and nearby waterways with two marinas upriver from the bridge. From 2011 through June 2020, the swing span opened for vessels 474 times, an average of 4.27 openings per month. Most openings have been for vessels operated by the CADFW (58%), followed by recreational vessels (22%), towboat-vessel assistance (9%), and tug and barge units (6%). Law enforcement and search and rescue vessels also used the waterway. The Caltrans (Route 4) highway bridge across Old River, mile 14.8, between Victoria Island and Byron Tract, is a swing span drawbridge. It provides a horizontal clearance of 98 feet and a vertical clearance of 12.7 feet above mean high water in the closed position with unlimited vertical clearance when fully opened. The Caltrans (Route 4) highway bridge is currently governed by 33 CFR 117.183, which requires the draw to open on signal from May 1 through October 31 from 6 a.m. to 10 p.m., and from November 1 through April 30 from 9 a.m. to 5 p.m. At all other times, the
Due to infrequent calls for drawbridge openings, Caltrans has requested a four- hour notification year-round for drawbridge openings at this location. A four-hour notification will allow Caltrans to use personnel more efficiently and reduce unnecessary staffing of the drawbridge during periods of navigational inactivity while continuing to meet the reasonable needs of navigation on the waterway.
In order to gather public comments to the proposed operating schedule change, a test deviation was conducted from May 10, 2021 through August 7, 2021. The notice of this test deviation was published in the
The Coast Guard proposes to change the operating schedule that governs the California Department of Transportation (Route 4) highway bridge, across Old River, mile 14.8, between Victoria Island and Byron Tract, California.
This proposed rule would implement regulations for the bridge to open on signal if at least four hours notice is given to the drawtender at the Rio Vista bridge across the Sacramento River, mile 12.8.
This proposed rule change would meet the reasonable needs of navigation on this portion of Old River.
We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on these statutes and Executive Orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the ability that vessels can still transit the bridge given advanced notice.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). The Coast Guard has determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule promulgates the operating regulations or procedures for drawbridges. Normally such actions are categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.
Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in this docket and all public comments, will be in our online docket at
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; DHS Delegation No. 0170.1.
The draw of the California Department of Transportation (Route 4) highway bridge, mile 14.8 between Victoria Island and Byron Tract, shall open on signal if at least four hours notice is given to the drawtender at the Rio Vista bridge across the Sacramento River, mile 12.8.
Department of the Army, Corps of Engineers, Department of Defense; and Environmental Protection Agency (EPA).
Notice of events; request for nominations.
On June 9, 2021, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (hereafter, “the agencies”) announced their intent to revise the definition of “waters of the United States” under the Clean Water Act through two rulemakings—first, a foundational rule that will propose to restore longstanding protections, and a second rulemaking process that builds on that regulatory foundation. On July 30, 2021, the agencies announced stakeholder engagement opportunities, including the agencies' intent to host ten regionally focused roundtables. EPA and Army are announcing a process for stakeholders to submit nomination letters to the agencies to potentially be selected for one of these ten geographically focused roundtables. Each roundtable should include diverse perspectives and highlight the experience of individual participants with the definition of “waters of the United States.” The agencies intend to livestream each roundtable to make them available for public viewing.
Nomination letters for the roundtables must be received on or before 11:59 p.m. Eastern Daylight Time on November 3, 2021. EPA anticipates that roundtables will be held in December 2021 and potentially January 2022. Specific dates will be coordinated with selected nominees based on availability. Please refer to the
Kate Balasa, Office of Water, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (312) 886-6027; email address:
In the last six years, the agencies have implemented three different definitions of “waters of the United States”—the pre-2015 regulatory regime, the 2015 Clean Water Rule, and the 2020 Navigable Waters Protection Rule (NWPR). The agencies' experience
On June 9, 2021, EPA and the U.S. Department of the Army (hereafter, “the agencies”) announced their intent to revise the definition of WOTUS under the Clean Water Act through two rulemakings—first, a foundational rule that will propose to restore longstanding protections, and a second rulemaking process that builds on that regulatory foundation. On July 30, 2021, the agencies announced stakeholder engagement opportunities, including the agencies' intent to host ten regionally focused roundtables. EPA and Army are announcing a process for stakeholders to submit nomination letters to the agencies to potentially be selected for one of these ten geographically focused roundtables.
The intent for each regional roundtable is to engage individuals representing diverse perspectives in meaningful dialogue on the definition of WOTUS. The roundtables will provide opportunities to discuss geographic similarities and differences, particular water resources that are characteristic of or unique to each region, and site-specific feedback about implementation of WOTUS.
The goals of the regional roundtables are to obtain robust and diverse public input on WOTUS. The agencies are seeking input on a durable definition of WOTUS, not limited to the scope of the regulatory processes announced on June 9, 2021. EPA and Army are seeking to understand perspectives:
• Highlighting how different regions are affected by the various WOTUS definitions (
• Learning about stakeholder experiences, challenges, and opportunities under different regulatory regimes.
• Facilitating engagement across diverse perspectives to inform the development of a durable and workable definition of WOTUS.
The agencies are committed to learning from the past regulatory approaches—the pre-2015 regulations and guidance, the 2015 Clean Water Rule, and the 2020 Navigable Waters Protection Rule—while engaging with stakeholders to develop an enduring definition of WOTUS.
The roundtables will take place in December 2021 and potentially January 2022. These stakeholder engagements are complementary of previous and future opportunities for public input, including:
• A notice of public meeting dates and solicitation of written pre-proposal feedback from August 4, 2021 to September 3, 2021;
• Public meetings that were held on August 18, August 23, August 25, August 26, August 31, and September 2, 2021;
• State meetings and engagement with Tribes and Alaska Native Villages; and
• Future public comment periods on upcoming regulatory actions.
The agencies intend to host ten virtual roundtables during which stakeholders can participate in a discussion on “waters of the United States” and provide their unique perspectives to EPA and the Army. These regionally focused roundtables will allow stakeholders with a range of perspectives to engage and discuss their experiences with definitions of WOTUS, including challenges and opportunities within their geographic areas. The roundtables will also provide an opportunity for the participants to discuss geographic similarities and differences, particular water resources that are characteristic of or unique to each region, and site-specific feedback about implementation.
For the purposes of these roundtable discussions, geographic regions are identified as follows:
The agencies are inviting stakeholders to organize interested parties and regional participants that comprise up to 15 representatives for these roundtables. Each nomination for a roundtable must include a proposed slate of participants representing perspectives of: Agriculture; conservation groups; developers; drinking water/wastewater management; environmental organizations; environmental justice communities; industry; and other key interests in that region.
The agencies request that organizers that would like to be considered for a roundtable submit their self-nomination letter via email to
• Organizer primary point of contact and contact information (name, title, affiliation, email, phone number);
• Name, affiliation, email, phone number, and address information of proposed participants for the roundtable;
• Confirmation that the number of stakeholders, including the organizer and participants, does not exceed 15 individuals;
• The region the roundtable is representing, with a paragraph description of the region;
• The perspectives that are represented in the roundtable;
• A brief description of key topics related to WOTUS implementation in the region. For consideration, the agencies have described topics in the August 4, 2021
After reviewing the nomination letters, EPA and Army will select ten of the self-nominated groups to participate in a regional roundtable discussion on WOTUS, hosted by the agencies. Please note that because of current CDC recommendations, as well as state and local orders for social distancing to limit the spread of COVID-19, EPA cannot hold in-person public meetings at this time. The agencies will host these roundtables virtually. The agencies anticipate coordinating with elected officials that represent the location of selected roundtables. The agencies also intend to livestream each roundtable to make them available for public viewing.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose critical habitat for the coastal distinct population segment of Pacific marten (coastal marten) (
We will accept comments received or postmarked on or before December 27, 2021. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Jenny Ericson, Acting Field Supervisor, U.S. Fish and Wildlife Service, Arcata Ecological Services Field Office, 1655 Heindon Road, Arcata, California 95521, or by telephone 707-822-7201. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS) at 800-877-8339.
We will solicit additional peer review of this proposed rule and respond to any peer review comments on the proposed designation in the final rule as appropriate.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) The coastal marten's biology and range; habitat requirements for feeding, breeding, and sheltering; and the locations of any additional populations.
(2) Specific information on:
(a) The amount and distribution of coastal marten habitat;
(b) What areas that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of the coastal marten should be included in the designation and why;
(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change;
(d) What areas not occupied at the time of listing are essential for the conservation of the species. We particularly seek comments:
(i) Regarding whether occupied areas are adequate for the conservation of the species; and
(ii) Providing specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species.
(e) Land ownership information, including land conservation status or management status. We particularly seek information on Tribal lands. Our spatial data information did not show any other Tribal lands within proposed critical habitat units beyond the ownership acreages listed below.
(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(4) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas.
(5) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts.
(6) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. In particular, provide information for areas with management plans or other mechanisms in place that identify measures to protect and conserve the coastal marten or its habitat, such as the areas managed by Green Diamond Resource Company and the Yurok Tribe.
(7) If you request exclusion from the designation of critical habitat of any areas under section 4(b)(2) of the Act, the Secretary will consider credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for that particular area, as provided in 50 CFR 17.90(c)(2)(i).
(8) As provided in our regulations, we are to identify in a proposed designation of critical habitat those areas that we are considering for exclusion. In this proposed rule under the section entitled Exclusions, we have indicated that we are considering areas managed by the Green Diamond Resource Company and by the Yurok Tribe for possible exclusion and explain why. Please provide information regarding Green Diamond Resource Company and the Yurok Tribe lands considered for exclusion.
(9) Information on the projected and reasonably likely impacts of climate change on the coastal marten's habitat.
(10) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
(11) Information relating to species distribution or habitat modeling which is currently underway.
Please include sufficient documentation with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you present.
Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, do not provide substantial information necessary to support our determination, as section 4(b)(2) of the Act directs that critical habitat designations must be made “on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact.”
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), our final critical habitat designation may not include all areas proposed, may include some additional areas that meet the definition of critical habitat, and may exclude some areas if we find the benefits of exclusion outweigh the benefits of inclusion.
Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in
On October 9, 2018, we proposed the coastal marten (83 FR 50574) as a threatened species under the Act and published our proposed rule in the
In the final listing rule published in the
A species status assessment team prepared a SSA report for the coastal marten (Service 2019a, entire). The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species, as well as habitat needs for the species, which informed this critical habitat proposal. Information regarding peer review of the SSA is in our October 8, 2020, final listing determination (85 FR 63806). We also conducted an economic analysis on the incremental impacts of the proposed critical habitat designation (see Service 2019b, entire; IEc 2020, entire).
Although published too late to be included in our final listing determination (85 FR 63806, October 8, 2020), we are aware of research indicating that martens in coastal Oregon are of the Humboldt subspecies (
We evaluated all available data, published and unpublished, for Pacific martens within the coastal DPS. Where information gaps exist, we rely on Pacific marten information from outside the DPS, and occasionally from American martens (
We are aware of species distribution modeling that is underway but was not available for inclusion in the analysis for this proposed rule. If this new information becomes available, it will be considered in the final determination of critical habitat.
The marten is a medium-sized carnivore related to weasels (
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
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 translocation, 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. Designation also does not allow the government or public to access private lands, nor does designation 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 to principles of conservation biology, such as patch size, distribution distances, and connectivity.
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. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. 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. In addition, 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 SSA report and 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 this 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 these planning efforts calls for a different outcome.
Section 4(a)(3) of the Act, as amended, and implementing regulations
(i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;
(ii) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.
As discussed in the final listing rule (85 FR 63806, October 8, 2020), there is currently no imminent threat of take attributed to collection or vandalism identified under Factor B (16 U.S.C. 1533(a)(1)(B)) for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our SSA and final listing rule for the coastal marten, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the coastal marten and that those threats in some way can be addressed by section 7(a)(2) consultation measures. The species occurs wholly in the jurisdiction of the United States, and we are able to identify areas that meet the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have been met and because there are no other circumstances the Secretary has identified for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the coastal marten.
Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the coastal marten is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”
When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).
In our proposed listing rule (83 FR 50574, October 9, 2018), we stated that critical habitat was not determinable because the assessment of the economic impacts of the designation were still ongoing and we were in the process of acquiring the complex information needed to perform that assessment. We have now obtained that information and completed an economic analysis of the proposed critical habitat. In addition, we reviewed the available information pertaining to the biological needs of the species and habitat characteristics where these species are located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the coastal marten.
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), 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, alkali soil for seed germination, protective cover for migration or predator avoidance, 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, the Service 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.
Details on habitat characteristics for the Pacific marten can be found in the SSA (Service 2019a, pp. 24-35) and Slauson
Coastal martens are solitary animals except during mating and when females are raising young. They establish home ranges in areas that provide enough habitat to support their life-history needs (Table 1), allow access to mates, and avoid individuals of the same sex (Slauson
Martens occupying shore pine (
Dispersal is the means by which marten populations maintain and expand their distribution and population size. Successful dispersal requires functional connections between habitat patches capable of supporting reproduction across the landscape. Hence, individual martens disperse by selecting portions of the landscape that facilitate movement and searching for an area in which to select a home range that does not overlap with same-sex individuals. Where landscapes are heavily disturbed through intensive logging, juvenile dispersal may be especially costly, as evidenced by lower survival and poorer body condition of martens dispersing through regenerating vs uncut landscapes (Johnson
Martens are dietary generalists. Small mammals dominate their diet year round, with some mammal species varying by season. Birds, insects, and fruits are also seasonally important. Habitat characteristics associated with marten prey are important to provide a food source for martens. Many of the small mammal species that martens prey on reach their highest densities in forest stands with mature and late-successional structural features; in these stands, the food resources used by marten prey species, such as conifer seeds and truffles, are most abundant. In addition, other features associated with increased densities or abundances of marten prey species include increased density and complexity of ericaceous shrub layers, increased amounts of coarse woody debris, and density of large snags. Structural complexity on the forest floor improves predation success for martens. In the shore pine forest community of the central coastal Oregon population, areas with an
Bobcats (
Martens seek out cover and shelter at several scales. At the site scale, they look for structures and surrounding features that accommodate denning and resting. Denning sites are used by females for birthing and raising their kits (see
At larger scales (stand, home range, and landscape), martens need sufficient habitat, such as overhead and escape cover, to minimize their exposure to predators as they move through their home range or disperse across the landscape. Martens tend to avoid forest openings and landscapes with large areas of forest openings. An analysis of martens across North America found that individual home ranges typically contain a large proportion (greater than or equal to 70 percent) of suitable habitat; furthermore, marten density declines when the area of suitable habitat across the landscape is reduced to less than 70 percent as a result of wildfire, forest management, or other stand-replacing disturbance (Thompson
Within the coastal marten DPS, on sites with highly productive soil conditions, martens select old-growth and late-mature stands dominated by Douglas-fir overstories; these stands have dense (greater than 70 percent cover) shrub layers that are spatially extensive and dominated by ericaceous species, including but not limited to evergreen huckleberry (
Occupying home ranges with large amounts of overhead cover provided by shrub or forest canopy is thought to reduce marten exposure to predators. In addition, occupying landscapes with similarly large amounts of mature or old forest cover with complex understory minimizes their distributional overlap with generalist predators that are typically associated with younger forests or more open habitats (Slauson
Females give birth to kits in forest structures called natal dens. Subsequent structures used to raise young kits are called maternal dens. The most common den structures used by martens across North America are cavities in large-diameter live and dead trees, and known coastal marten dens also correspond to this pattern. Trees containing marten den sites are structurally complex, with large limbs, broken tops, hollow bases, complex crowns, or multiple cavities. Martens appear to be more selective of habitat conditions at den sites than at rest sites; this tendency likely reflects a need for foraging habitat to be within close proximity of a den site, allowing females to minimize energy expenditure for foraging and minimize time spent away from kits (Service 2019a, pp. 26-27; Slauson
As noted above in the
Forest management is the human disturbance that has the greatest effect on marten habitat in terms of scale and severity. The loss of marten habitat as a result of timber harvest is considered the likely cause of the continued low population levels in California since the State banned trapping in 1946. Vegetation management, such as timber harvest, thinning, fuels reduction, and non-forest habitat restoration can result in temporary or permanent loss, degradation, or fragmentation of suitable coastal marten habitat (Service 2019a, p. 55). Human development also results in permanent habitat conversion, but is generally limited in scope to the area around established communities and existing developments.
Within the DPS, wildfire is the natural disturbance that affects by far the greatest area of habitat. Fires are a necessary disturbance feature as they create or facilitate the development of structural features used by martens, such as snags, hollow trees, and down logs. However, fires can also remove large areas of suitable marten habitat that can take many decades to recover (Service 2019a, pp. 48-51). Other natural disturbances that affect marten habitat to a much lesser degree than wildfire include windstorms, landslides, and forest insects and pathogens. These events generally degrade or remove habitat in localized areas. Similar to wildfire, however, they are also important processes for developing forest structures used by coastal martens, such as broken top trees, cavities, and down wood.
We derive the specific physical or biological features (PBFs) essential to the conservation of the coastal marten from studies of this species' habitat, ecology, and life history as described in the SSA report for the coastal marten (Service 2019a, entire). We have determined that the following PBFs are essential to the conservation of the coastal marten:
(1)
a. For areas with relatively low productivity (
b. For other areas with higher productivity, martens tend to favor forest stands in the old-growth or late-mature seral stages. The specific forest composition and structure conditions found in higher productivity areas will vary by plant series and site class. Structural and composition descriptions of old-growth or late-mature seral stages for local plant community series should be used where available. In general these stands exhibit high levels of canopy cover and structural diversity in the form of: (1) A wide range of tree sizes, including trees with large
(2)
(3)
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. The features essential to the conservation of this species may require special management considerations or protection to reduce the following direct or indirect threats: Incidents of roadkill; inadvertent poisoning from rodenticides; predation; disease; impacts from wildfire; and vegetation management actions. A detailed discussion of activities influencing the coastal marten and its habitat can be found in the final listing rule (85 FR 63806, October 8, 2020). Special management considerations or protection that may be required within critical habitat areas to address these threats include (but are not limited to) the following: Development of wildlife crossings on major roadways; monitoring and patrolling for unauthorized use of rodenticides in agricultural settings including cannabis operations; maintaining adequate cover and connectivity of habitats to provide cover from predation; implementation of forest management practices that prevent or reduce risk of catastrophic wildfire; reducing indirect impacts to coastal marten habitat from activities adjacent to critical habitat units; and minimizing habitat disturbance, fragmentation, and destruction through use of best management practices for vegetation management activities and providing appropriate buffers around coastal marten habitat.
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 currently proposing to designate any areas outside the geographical area occupied by the species because we have not identified any unoccupied areas that meet the definition of critical habitat. The occupied areas identified encompass the varying habitat types and distribution of the species and provide sufficient habitat to allow for maintaining and potentially expanding the populations.
To determine and select appropriate occupied areas that contain the physical or biological features essential to the conservation of the species or areas otherwise essential for the conservation of the coastal marten, we developed a conservation strategy for the species. The goal of our conservation strategy for the coastal marten is to recover the species to the point where the protections of the Act are no longer necessary. The role of critical habitat in achieving this conservation goal is to identify the specific areas within the coastal marten's range that provide essential physical and biological features without which the coastal marten's range-wide resiliency, redundancy, and representation could not be achieved. This, in turn, requires an understanding of the fundamental parameters of the species' biology and ecology based on well-accepted conservation-biology and ecological principles for conserving species and their habitats, such as those described by Carroll
In developing our conservation strategy, we focused on increasing the resiliency, representation, and redundancy of coastal marten populations by maintaining and improving extant marten populations and suitable habitat. Because coastal marten occur in small and isolated populations, the primary focus of the conservation strategy is to maintain and expand extant populations and suitable habitat within those population areas. Suitable habitat includes areas for cover, resting, denning and foraging and also provides for dispersal habitat when breeding or food resources may not be optimal. To maintain redundancy of coastal marten populations, the conservation strategy also focuses on providing for areas in the diversity of habitats that coastal martens have been documented to use. This includes mesic serpentine, coastal shore pine, and late-seral coniferous forests. These habitats are spread across the species' range and typically provide the physical and biological features essential to the
As discussed above, to assist in determining which areas to identify as critical habitat for the coastal marten, we focused our selection on extant populations in the diversity of habitats represented by coastal marten. We define the proposed critical habitat as sites that contain the physical or biological features essential to the conservation of the species within the geographical area occupied by the species at the time of listing.
To define the areas we consider to be the areas occupied at the time of listing, we started with a set of detection points and grouped detections into extant population areas (EPAs). The EPAs and the habitat areas adjacent to and within dispersal distance between the EPAs encompass the core areas we consider to be occupied at the time of listing. All current verifiable coastal marten detections were used to delineate EPAs within the historical home range. If the total number of detections in an area was less than five or they were separated by greater than 3 mi (5 km) from other verifiable detections, the combined detections were not designated as an EPA due to the insufficient level of information to suggest a likely self-sustaining population (Service 2019a, p. 84). EPAs were considered separate from each other if they were not within 4.6 mi (7.5 km) of each other, which is based on half of the average dispersal distance of a coastal marten. This distance assumes that animals are not regularly moving between EPAs and the EPAs are functioning as separate populations. To better focus the areas occupied at the time of listing and considered to be essential to the conservation of the species, we refined the boundaries of the EPAs using a 60 percent concave hull method to select those areas with a higher prevalence of coastal marten detections.
Because the EPAs are based on occurrence records and not habitat, we also used two different habitat models specific to coastal marten to incorporate the habitat used by the coastal marten detections associated with each EPA. These modeled areas are considered occupied by the species based on the continuous nature of the habitat and are within the dispersal distance and home ranges of the species. The first model we used found that coastal martens were positively associated with Old-Growth Structural Index (OGSI), precipitation, and serpentine soils, and negatively with elevation (Slauson
We also used a habitat connectivity model developed by the Service that incorporates OGSI data along with a minimum patch size of habitat to create `cores' of suitable habitat (Schrott and Shinn 2020, entire). We used our model in conjunction with the Slauson
We further evaluated the polygons based on the PBFs for coastal marten and current land management practices under the Northwest Forest Plan (NWFP). We prioritized inclusion of Federal reserve lands and State lands occupied by the species at the time of listing because these lands contribute most to the conservation of the species, but also included those private lands that contain the PBFs essential to coastal marten conservation and which may require special management.
When determining proposed 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 physical or biological features necessary for the coastal marten. 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 proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Due to unverifiable ownership and mapping information, some small portions of private or unclassified lands may occur within the mapping of Units 1, 2 and 3, but which were not intended for inclusion within the designation. These areas are extremely small artifacts of mapping discrepancies and potential overlapping data information, do not contain the PBFs considered essential to the conservation of the species, and are not intended to be included as critical habitat as defined in this rule. Accordingly, any private lands in Units 1, 2, or 3 inadvertently included in the proposed designation are not considered critical habitat because they are part of inadvertent overlap or undeterminability and are too small to be significant for coastal marten conservation. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.
We propose to designate as critical habitat lands that we have determined are occupied at the time of listing (
Units are proposed for designation based on one or more of the physical or biological features being present to support the coastal marten's life-history processes. Some units contain all of the identified physical or biological features and support multiple life-history processes. Some units contain only some of the physical or biological
The proposed 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 Proposed 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 proposing five units as critical habitat for the coastal marten. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the coastal marten. Table 3 below identifies all of the units within the geographical area occupied at the time of listing that contain the physical or biological features that support multiple life-history processes for the coastal marten and are thus essential to the conservation of the species.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the coastal marten, below.
This unit consists of approximately 95,218 ac (38,534 ha) and encompasses the northern portion of the central coastal Oregon population of coastal martens. Almost all of the unit is within Lane County, north of Oregon Highway 126, but a small portion extends north into Lincoln County, Oregon, on lands managed by the Siuslaw National Forest. The unit mostly borders the Pacific Ocean from just south of the town of Yachats, south to near Sea Lion Caves; further inland, the unit extends as far south as Mercer Lake. Portions of the unit extend inland from the coast as much as 18 mi (29 km), but most of the unit is within 12 mi (19 km) of the coast. The unit is almost entirely in Federal ownership (94,094 ac (37,675 ha)) (99 percent), specifically the Siuslaw National Forest, with approximately 74,899 ac (30,311 ha) in Late-Successional Reserve (LSR) land use allocation under the NWFP (USFS 1994, entire). Rock Creek and Cummins Creek Wilderness Areas make up much of the rest of the Federal lands. Oregon State Park lands along the coast comprise most of the remainder of the unit (2,124 ac (859 ha)), including Neptune, Heceta Head, Washburne, and Ponsler State Parks. Recreation is a principal land use in this unit. Because the Federal lands are in an LSR allocation, forest management is limited to activities that are neutral or beneficial to the retention or development of late-successional forest conditions.
This unit was occupied at the time of listing (2020), is currently occupied by coastal martens, and contains one or more of the physical or biological features essential to the conservation of the species. This unit represents the northernmost distribution of coastal martens in Oregon (based on contemporary detections), as well as relatively unfragmented old forest compared to other forests near the ocean within the DPS. This area may facilitate movement of coastal martens inland. This unit provides all of the features described in PBFs 1 and 2. Overstory conditions as described in PBF 1 are mostly associated with high-productivity sites across much of this unit, characteristic of the mature forests of the Sitka spruce vegetation zone as described in Franklin and Dyrness (1988, pp. 58-59).
The habitat-based threats in this unit that may require special management include removal of forest vegetation, primarily through vegetation management such as timber harvest. Approximately 80 percent of the Federal portion of this unit is managed as a Late Successional Reserve, which requires retaining or developing late-successional conditions that could be suitable for coastal martens. However, some treatments that meet LSR standards and guidelines, such as thinning to increase tree size or stand complexity, can result in loss of dense understories that are valuable to coastal martens to escape from predators and provide suitable prey habitat. We have not identified potential exclusions at this time, but may consider information regarding potential exclusions provided during the comment period for this proposal.
This unit consists of approximately 8,830 ac (3,574 ha) and encompasses the central portion of the central coastal Oregon population of coastal martens in coastal Lane and Douglas Counties, Oregon. The unit occurs along the coastline west of Highway 101 and extends from near the city of Florence, Oregon, south approximately 12 mi (19 km) to the vicinity of Tahkenitch Creek, west of Tahkenitch Lake. Land ownership within the unit includes approximately 8,582 ac (3,472 ha) of Federal and 249 ac (101 ha) of State land. The Federal portion is within the Oregon Dunes National Recreation Area, managed by the Siuslaw National Forest. The State portion comprises Honeyman State Park. Recreation is the principal land use in this unit, primarily All-Terrain Vehicle (ATV) use on the open dunes and forested trails within the recreation area and surrounding areas.
This unit was occupied at the time of listing (2020) and is currently occupied by coastal martens. Coastal martens in this unit and Unit 3 exhibit the highest densities and smallest home ranges documented in North America (Linnell
The habitat-based threats in this unit that may require special management include possible loss of shore pine and understory shrub habitat in an effort to restore movement of coastal sand dunes or increase open areas for recreation vehicles. An additional threat is the invasion of nonnative shrub species (
This unit consists of approximately 15,582 ac (6,306 ha) and encompasses the southern portion of the central coastal Oregon population of coastal martens in coastal Douglas and Coos Counties, Oregon. The unit extends from Winchester Bay south to the north spit of Coos Bay proper, and lies west of U.S. Highway 101. Land ownership includes 14,934 ac (6,044 ha) of Federal and 648 ac (262 ha) of State land. The Federal portion is within the Oregon Dunes National Recreation Area, managed by the Siuslaw National Forest. The State portion comprises Umpqua Lighthouse State Park. This unit is otherwise similar to Unit 2 in terms of primary land use, coastal marten occupancy, presence of physical and biological features, vegetation description, essentiality of conservation, and habitat based threats. Recreation is the principal land use in this unit, primarily ATV use on the open dunes and forested trails within the recreation area and surrounding areas.
This unit was occupied at the time of listing (2020) and is currently occupied by coastal martens. Coastal martens in this unit, along with Unit 2, exhibit the highest densities and smallest home ranges in North America (Linnell
The habitat-based threats in this unit that may require special management include addressing the possible loss of shore pine and understory shrub habitat in an effort to restore movement of coastal sand dunes or increase open areas for recreation vehicles. An additional threat is the invasion of nonnative shrub species (
This unit consists of approximately 4,046 ac (1,637 ha) and encompasses the immediate coastal portion of the southern coastal Oregon population of coastal martens in coastal Coos and Curry Counties, Oregon. The unit extends from just south of the Bandon State Natural Area, south to Cape Blanco State Park, and lies west of U.S. Highway 101. Land ownership includes 1,021 ac (413 ha) of Federal and 3,025 ac (1,224 ha) of State land. The Federal portion is managed by the Bureau of Land Management (BLM) as a District Designated Reserve with no programmed timber harvest; portions of the reserve are managed for recreation, while other portions are managed as the New River Area of Critical Environmental Concern to protect and conserve natural resources. The State portion comprises Cape Blanco State Park and Floras Lake State Natural Area. Recreation is the principal land use in this unit.
This unit was occupied at the time of listing (2020) and is currently occupied by coastal martens and contains one or more of the components described in PBFs 1 and 2 that are essential to the conservation of the species. The unit is a mix of shore pine dominated forests in the lowlands near the ocean, and more mature Sitka spruce forest in the higher bluffs around Cape Blanco. This unit encompasses occupied coastal forest that is known to be suitable habitat for coastal martens.
The habitat-based threats in this unit that may require special management are the prevalence of invasive shrub species that may preclude the development of ericaceous shrubs and shore pine that are known components of suitable coastal marten habitat. We have not identified potential exclusions at this time, but may consider information regarding potential exclusions provided during the comment period for this proposal.
This unit consists of approximately 1,289,627 ac (521,913 ha) and occurs mostly within the Klamath Mountains of southwestern Oregon and northwestern California. Within Oregon, the unit occurs in the southern part of Coos County, just south of Powers, Oregon, and extends south through eastern Curry and western Josephine Counties, with the northeastern fringe of the unit extending into Douglas County. The northwestern portion of this unit consists of a non-contiguous portion that encompasses Humbug Mountain State Park. The unit extends south into California, occupying much of the eastern portion of Del Norte County, extending south into Humboldt County and east into Siskiyou County. In California, the unit lies west of U.S. Highway 96 and extends all the way to the Pacific Ocean in northern Humboldt
This unit was occupied at the time of listing (2020) and is currently occupied by coastal martens and contains one or more of the physical or biological features essential to the conservation of the species. This unit represents the southernmost distribution of coastal martens in the DPS and encompasses the majority of known coastal marten detections. Outside of the northern portion of Unit 1, it also is the only source of non-shore pine habitat, and includes a variety of vegetation conditions that coastal martens use, enhancing representation. This unit contains key connectivity areas for coastal martens to move either north or south in the DPS, as well as inland or towards the coast. This unit provides all of the features described in PBFs 1 and 2. Overstory conditions as described in PBF 1 are associated with high productivity sites across much of the unit, but low-productivity serpentine sites also occur across this unit.
The habitat-based threats in this unit that may require special management include removal of forest vegetation, primarily through vegetation management such as timber harvest. Fuels management to reduce the risk of fire is also a regular activity throughout much of this unit. We have identified potential exclusions for some private and Tribal lands in this unit (see Exclusions). These potential exclusions include 76,544 ac (30,975 ha) of private land and 26,126 ac (10,573 ha) of Tribal land in the California portion of the unit.
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. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
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 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, we have listed a new species or designated critical habitat that may be affected by the Federal action, or the action has been modified in a manner that affects the species or critical habitat in a way not considered in the previous consultation. 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 destruction or 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.
The scale and context of activities are particularly important in evaluating the potential effects on coastal marten habitat. The degree to which management activities are likely to affect the capability of critical habitat to support coastal martens will vary depending on factors such as the scope and location of the action, and the quantity of critical habitat affected. Activities that the Service may, during a consultation under section 7(a)(2) of the Act, be considered likely to destroy or adversely modify critical habitat include, but are not limited to:
(1) Actions that would remove, manipulate, degrade, or destroy coastal marten habitat at such a magnitude that the entirety of the designated critical habitat would no longer serve its intended value of providing for conservation of the species. Activities that could result in such an impact could include very large-scale mechanical (including controlled fire), chemical, or biological (biocontrol agents) actions that may cause significant reductions in the amount, extent, or quality of habitat available to coastal martens for resting, denning, feeding, breeding, sheltering, and dispersing. While we are currently unaware of any planned activities involving Federal actions that could reach this magnitude of impact to the essential physical or biological features, known activities that have the potential to impact components of these features include timber sales, vegetation management, hazard tree removal, salvage of large areas of trees killed by fire or other mortality source, noxious weed treatments, forest pest and disease management, fire management including fire suppression and fuel reduction treatments, forest and aquatic restoration projects, activities conducted under mining permits, activities conducted under travel management plans (
(2) Actions in relation to the Federal highway system, as regulated by the U.S. Department of Transportation, that would remove, fragment, manipulate, degrade, or destroy coastal marten habitat at such a magnitude that the entirety of the designated critical habitat would no longer serve its intended value of providing for conservation of the species. While we are currently unaware of any planned activities involving the Federal highway system that could reach this magnitude of impact to the essential physical or biological features, known activities that have the potential to impact components of these features include very large-scale road and bridge construction and right-of-way designation, maintenance or improvements of existing highways, and other infrastructure projects. These activities could remove, fragment, or reduce the amount, extent, or quality of habitat needed by coastal martens for resting, denning, feeding, breeding, sheltering, and dispersing.
(3) Actions regulated by the Federal Energy Regulatory Commission, which are energy development projects that would remove, manipulate, degrade, or destroy coastal marten habitat at such a magnitude that the entirety of the designated critical habitat would no longer serve its intended value of providing for conservation of the species. While we are currently unaware of any planned activities involving Federal actions that could reach this magnitude of impact to the essential physical or biological features, known energy development projects that have the potential to impact components of these features could include, but are not limited to, very large-scale powerlines, liquefied natural gas pipelines and terminals, and solar and wind farms. These activities could remove or reduce the amount, extent, or quality of habitat needed by coastal martens for resting, denning, feeding, breeding, sheltering, and dispersing.
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 proposed 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 she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, 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 exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.
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. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.”
The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected
For this particular designation, we developed an incremental effects memorandum (IEM) (Service 2019b, entire) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the coastal marten (Industrial Economics (IEc) 2020, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs (
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the coastal marten, first we identified, in the IEM dated October 22, 2019, probable incremental economic impacts associated with the following categories of activities: (1) Timber harvest activities; (2) wildfire or wildfire suppression activities; (3) road construction activities; (4) remediation of unauthorized cannabis cultivation sites; and (5) habitat restoration activities. We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the coastal marten is present, Federal agencies already are required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation (
The proposed critical habitat designation for the coastal marten is made up of five units, four within Oregon and one along the Oregon border extending south into California. All of the units are occupied by the coastal marten. The amount of area being proposed within each unit along with ownership information is summarized in Table 3 (see Proposed Critical Habitat Designation). Federal land makes up 90 percent of the total proposed designation (Table 3). As a result, a large percentage of the designation would be subject to a Federal nexus and section 7 consultation. Approximately 81 percent of the Federal lands are specifically managed by the USFS. A number of existing land use and management plans exist within proposed critical habitat that may provide benefits to coastal marten critical habitat. In particular, USFS lands proposed as critical habitat are managed under the Northwest Forest Plan, which entails a network of late-successional reserve land-use allocations to be managed for the retention and development of late-successional forest that may benefit habitat for coastal martens. In addition, most proposed BLM lands are included in reservation allocations where programmed timber harvest does not occur.
Because the proposed units are occupied, any actions that may affect the species or its habitat would also affect designated critical habitat, and 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 coastal marten. Therefore, only administrative costs associated with an adverse modification analysis are expected in approximately 90 percent of the proposed critical habitat designation. While this additional analysis will require time and resources by both the Federal action agency and the Service, it is believed that, in most circumstances, these costs would predominantly be administrative in nature and would not be significant.
In addition, nearly 48 percent of the proposed designation for coastal marten overlaps with existing critical habitat for the endangered marbled murrelet (
The entities most likely to incur incremental costs are parties to section 7 consultations, including Federal action agencies and, in some cases, third parties, most frequently State agencies or Tribes. Because the proposed critical habitat designation includes other lands not owned by Federal, State, or Tribal governments, incremental costs arising from public perception of the designation have some potential to arise; however, these non-governmental lands make up only a small portion (6.3 percent) of the proposed designation. Further, there do not appear to be significant development pressures in the area. We are not aware of any Tribal, State, or local government regulations or requirements that could be triggered by the designation of critical habitat for the coastal marten and attribute any change in behavior from private entities to be associated with public perception or attitudes rather than any specific requirements. Based on coordination efforts with Tribal partners and State and local agencies, the cost to private entities within these sectors is expected to be relatively minor (administrative costs of less than $10,000 per consultation effort); they, therefore, would not be significant.
Our analysis of economic costs estimates that considering adverse modification of coastal marten critical habitat during section 7 consultation will result in incremental costs of approximately $280,000 (2018 dollars) per year. The incremental administrative burden resulting from the designation of critical habitat for the coastal marten will not reach $100 million in a given year based on the estimated annual number of consultations and per-unit consultation costs. The designation is unlikely to trigger additional requirements under State or local regulations and is not expected to have perceptional effects to third parties.
We are soliciting data and comments from the public on the DEA discussed above, as well as all aspects of this proposed rule and our required determinations. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts received during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for the coastal marten are not owned, managed, or used by the Department of Defense or Department of Homeland Security; therefore, we anticipate no impact on national security or homeland security as a result of the designation. However, during the development of a final designation, we will consider any additional information received through the public comment period on the impacts of the proposed designation on national security or homeland security to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.
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. 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 would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of Tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation.
When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that 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.
When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation, or in the continuation, strengthening, or encouragement of partnerships.
In the case of the coastal marten, the benefits of critical habitat include public awareness of the presence of the coastal marten and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the coastal marten due to protection from destruction or adverse modification of critical habitat. Additionally, continued implementation of an ongoing management or conservation plan that provides equal to or more conservation than a critical habitat designation would reduce the benefits of including that
We evaluate the existence of a management or conservation plan when considering the benefits of inclusion. We consider a variety of factors, including, but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information or changing conditions.
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.
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.
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. 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 National Environmental Policy Act (NEPA; 42 U.S.C. 4321
(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.
The Green Diamond Resource Company (GDRC) owns and manages approximately 76,544 ac (30,976 ha) of lands included in the proposed designation for the coastal marten in California. Using the criteria described under
The GDRC has developed an MOU with the Service (GDRC-Service 2020, entire) and a State Safe Harbor Agreement (SHA) with the California Department of Fish and Wildlife (CDFW 2018, entire) to assist in conservation of the coastal marten and its habitat. Conservation measures identified for the coastal marten and its habitat in the MOU and State SHA include:
• Engage in survey, monitoring, reporting, and coordination efforts for coastal marten.
• Provide funding and technical support for assisted coastal marten dispersal actions.
• Develop and implement a coastal marten training program.
• Establish a 127,217 ac “Marten Special Management Area” with a 2,098 ac reserve.
• Create slash piles to benefit coastal marten and provide habitat around natal dens.
• Implement avoidance and minimization measures for GDRC actions in coastal marten habitat.
• Discourage and prevent unauthorized cannabis cultivation and use of pesticides.
• Implement adaptive management strategies for conservation of coastal marten and its habitat.
• Designate an internal compliance team and MOU Coordinator to oversee coastal marten conservation through the MOU and SHA.
• Provide access to GDRC lands to State and Service staff to verify compliance of agreements.
• Retain live and snag tree habitat components to benefit coastal marten (Retention Scorecard) and their habitat.
In addition, the GDRC has been and continues to be a member of a multi-agency management group for conservation of the coastal marten in California and Oregon. The group has developed a conservation strategy and management plan for conserving the coastal marten in California (Slauson
We have determined that the conservation measures and management actions identified above being undertaken by GDRC will conserve and manage coastal marten habitat including the species' PBFs and that these actions meet our criteria for exclusion under section 4(b)(2) of the Act. Based on GDRC working with the Service and the CDFW on development and implementation of the MOU and State SHA that benefit coastal marten habitat, involvement and development of the conservation strategy, and its continued partnership with us in coastal marten conservation, we are considering excluding GDRC lands from the final designation. We will continue to work with the GDRC throughout the public comment period and during development of the final designation of critical habitat for the coastal marten and are seeking comment on whether
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.
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” (
Approximately 26,126 ac (10,573 ha) of Yurok Tribal lands are included in the proposed designation of critical habitat for the coastal marten in Unit 5 in California. Using the criteria described under
The Yurok Tribe has a demonstrated track record of maintaining its lands for natural resources through implementation of their Yurok Forest Management Plan (FMP) (Yurok 2012, entire) and the Blue Creek Interim Management Plan (BCIMP) (Yurok Tribe and Western Rivers Conservancy 2018, entire). The FMP and BCIMP identify management guidance for specific forest types to enhance and restore healthy, resilient riparian and old growth forests on Yurok Tribal lands. The FMP and BCIMP identify actions that contribute to the conservation of coastal forest habitat important to coastal marten including:
• Establishment of the Humboldt Marten Special Management Area (currently 10,906 ac).
• Surveys for coastal marten in and around project areas.
• Retention and enhancement of suitable reproductive habitat.
• Strategic habitat management to improve connectivity.
• Population monitoring combined with adaptive management to evaluate management effectiveness and prevent disease and predation.
• When appropriate, use of timber harvest, thinning, fuels reduction, and prescribed fire methods that avoid or minimize alteration of dense understory shrubs that are beneficial to coastal marten.
• Identification of stand management alternative to restore and enhance shrub cover where it has been lost or reduced.
• Maintenance of spatial database of coastal marten distribution.
• Nonnative and invasive species control and eradication.
• Fire and fuels management (including variable density thinning, shaded fuel breaks, cultural burning, and emergency rehabilitation).
• Development, testing, and creation of surrogate structures that meet key life-history needs for resting and denning to increase habitat suitability in the short term.
Additionally, we have begun coordination with the Yurok Tribe to assist in identifying additional management actions that may benefit the coastal marten or its habitat. The intent of the discussions is to ultimately develop an MOU with the Tribe to further solidify our partnership with the Tribe in developing and implementing land management practices beneficial to the Tribe and the coastal marten. The current draft MOU identifies habitat management practices, habitat restoration, fuels reduction, and research opportunities that will benefit the coastal marten. The Yurok Tribe has also been and continues to be a member of a multi-agency management group for the conservation of coastal marten in California and Oregon. The group has developed a conservation strategy and management plan for conserving the coastal marten in California (Slauson
Based on existing conservation and management actions for natural resources by the Yurok Tribe, maintaining and strengthening our working relationship with the Tribe, and preliminary development of the coastal marten MOU with the Tribe, we are considering excluding the Yurok Tribal lands from the final designation. We are seeking comment on whether the Yurok Tribal lands are appropriate for exclusion from the final critical habitat designation to the extent consistent with the requirements of section 4(b)(2) of the Act.
Based on the information provided by entities whose lands we are considering for exclusion, as well as any additional public comments we receive, we will evaluate whether certain lands in Unit 5 of the proposed critical habitat are appropriate for exclusion from the final designation under section 4(b)(2) of the Act. If the analysis indicates that the benefits of excluding lands from the final designation outweigh the benefits of designating those lands as critical habitat, then the Secretary may exercise her discretion to exclude the lands from the final designation. We may also consider areas not identified above for exclusion from the final critical habitat designation based on information we
We are considering whether to exclude the following areas under section 4(b)(2) of the Act from the final critical habitat designation for the coastal marten. Table 4 below provides approximate areas (ac, ha) of lands that meet the definition of critical habitat but for which we are considering possible exclusion under section 4(b)(2) of the Act from the final critical habitat rule. These areas include lands owned and managed by the Green Diamond Resource Company and the Yurok Tribe in California in Unit 5.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
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 proposed 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 whether 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 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 would be directly regulated if we adopt the proposed critical habitat designation. There is no requirement under the RFA to evaluate the potential impacts to entities not directly
In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small business entities. Therefore, an initial 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 proposed critical habitat designation would significantly affect energy supplies, distribution, or use, because these types of activities are not occurring and not expected to occur in areas being proposed as critical habitat. 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 proposed rule would 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 would significantly or uniquely affect small governments. The lands being proposed for critical habitat designation are owned by cities, Tribes, the State of California or Oregon, and the National Park Service, Bureau of Land Management, or the U.S. Forest Service. None of these government entities fits the definition of a “small governmental jurisdiction.” Therefore, a Small Government Agency Plan is not required.
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 coastal marten 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 for the proposed designation of critical habitat for coastal marten, and it concludes that, if adopted, this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation.
In accordance with E.O. 13132 (Federalism), this proposed 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 proposed 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 State and local governments, or for anyone else. As a result, the proposed 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 proposed 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
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 would 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 would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The proposed areas of designated critical habitat are presented on maps, and the proposed 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 National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal 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. The Yurok Tribe has lands identified in the proposed designation. We have coordinated with the Tribe in development of the SSA and will continue to work with the Yurok Tribe throughout the process of designating critical habitat for the coastal marten.
A complete list of references cited in this rulemaking is available on the internet at
The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Arcata Fish and Wildlife Field Office and Oregon State Fish and Wildlife Service Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to 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; 4201-4245, unless otherwise noted.
(h) * * *
(a)
(1) Critical habitat units are depicted for California and Oregon, on the maps below in this entry.
(2) Within these areas, the physical or biological features (PBFs) essential to the conservation of the Pacific marten (Coastal DPS) consist of the following components:
(i) Habitat that supports a coastal marten home range by providing for breeding, denning, resting, or foraging. This habitat provides cover and shelter to facilitate thermoregulation and reduce predation risk, foraging sources for marten prey, and structures that provide resting and denning sites. To provide cover and support denning, resting, and foraging, coastal martens require a mature forest overstory, dense understory development, and biologically complex structure that contains snags, logs, other decay elements, or other structures that support denning, resting, or marten prey. Stands meeting the conditions for PBF 1 would also function as meeting PBF 2 (facilitating movement within and between coastal marten home ranges). Stands meeting the condition for PBF 1 contain each of the following three components:
(A)
(B)
(C)
(ii) Habitat that allows for movement within home ranges among stands that meet PBF 1 or that supports individuals dispersing between home ranges. Habitat within PBF 2 includes:
(A) Stands that meet all three conditions of PBF1;
(B) Forest stands that meet only the first two components of PBF 1 (mature, conifer-dominated forest overstory and a dense, spatially extensive shrub layer); or
(C) Habitats with lesser amounts of shrub, canopy, or forest cover, or lesser amounts of smaller structural features as described in PBF 1, and while not meeting the definition of PBF 1, would still provide forage and cover from predators that would allow a coastal marten to traverse the landscape to areas of higher quality habitat.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved or hardened areas as a result of development) and the land on which they are located existing within the legal boundaries of the critical habitat units for the species on [EFFECTIVE DATE OF THE FINAL RULE]. Due to the scale on which the critical habitat boundaries are developed, some areas within these legal boundaries may not contain the physical or biological features and therefore are not considered critical habitat.
(4)
(5)
(6) Unit 1: Siuslaw Unit, Lincoln and Lane Counties, Oregon.
(i) General description: Unit 1 consists of 95,218 ac (38,543 ha) and comprises Federal (94,094 ac (37,673 ha)), State (2,124 ac (859 ha)), and less than 1 ac (1 ha) other lands.
(ii) Map of Unit 1 follows:
(7) Unit 2: Siltcoos Unit. Lane and Douglas Counties, Oregon.
(i) General description: Unit 2 consists of 8,830 ac (3,574 ha) and comprises Federal (8,582 ac (3,472 ha)) and State (249 ac (101 ha)) lands.
(ii) Map of Unit 2 follows:
(8) Unit 3: Coos Bay Unit. Douglas and Coos Counties, Oregon.
(i) General description: Unit 3 consists of 15,582 ac (6,306 ha) and comprises Federal (14,934 ac (6,044 ha)) and State (648 ac (262 ha)) lands.
(ii) Map of Unit 3 follows:
(9) Unit 4: Cape Blanco Unit. Coos and Curry Counties, Oregon.
(i) General description: Unit 4 consists of 4,046 ac (1,637 ha) and comprises Federal (1,021 ac (413 ha)) and State (3,025 ac (1,224 ha)) lands.
(ii) Map of Unit 4 follows:
(10) Unit 5: Klamath Mountains Unit. Coos, Curry, Douglas, and Josephine Counties, Oregon. Del Norte, Humboldt, and Siskiyou Counties, California.
(i) General description: Unit 5 consists of 1,289,627 ac (521,913 ha) and comprises Federal (1,154,197 ac (467,103 ha)), State (19,829 ac (8,024 ha)), Tribal (26,126 ac (10,573 ha)), and private or undefined (89,475 ac (36,210 ha)) lands.
(ii) Map of Unit 5 follows:
United States African Development Foundation.
Notice of meeting.
The U.S. African Development Foundation (USADF) will hold its quarterly meeting of the Board of Directors to discuss the agency's programs and administration. This meeting will occur at the USADF office.
The meeting date is Tuesday, October 26, 2021, 11:00 a.m. to 12:30 p.m.
The meeting will be held by teleconference. Please see contact information for invitation details.
Nina-Belle Mbayu, 202-233-8808.
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 required 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 or other forms of information technology.
Comments regarding this information collection received by November 24, 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
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Office of Partnerships and Public Engagement, USDA.
Notice of conference call meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the Department of Agriculture and the Federal Advisory Committee Act (FACA), that a public teleconference of the Advisory Committee on Minority Farmers (ACMF) will be held to discuss USDA outreach, technical assistance, and capacity building for and with minority farmers; the implementation of the Socially Disadvantaged and Veteran Farmer and Rancher Grant Program (2501 Program); and methods of maximizing the participation of minority farmers and ranchers in the U.S. Department of Agriculture; and to plan mechanisms for best providing advice to the Secretary on the issues outlined above.
The meeting will be held virtually, Wednesday, November 3, 2021 at 1:00 p.m.-4:00 p.m. Central Standard Time (CST).
One tap mobile:
+16692545252,16146435155# US (San Jose).
+16468287666,16146435155# US (New York).
Dial by your location:
+1 669 254 5252 US (San Jose).
+1 646 828 7666 US (New York).
+1 669 216 1590 US (San Jose).
+1 551 285 1373 US.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
General information about the committee can also be found at
The Committee works in the interest of the public to ensure socially disadvantaged farmers have equal access to USDA programs. The Committee advises the Secretary on the implementation of section 2501 of the Food, Agriculture, Conservation, and Trade Act of 1990; methods of maximizing the participation of minority farmers and ranchers in U.S. Department of Agriculture programs; and civil rights activities within the Department, as such activities relate to participants in such programs.
Rural Utilities Service, USDA.
Funding opportunity announcement.
The Rural Utilities Service, a Rural Development agency of the United States Department of Agriculture (USDA), hereinafter referred to as “RUS” or “the Agency” is issuing a Funding Opportunity Announcement (FOA) to announce that it is accepting applications for fiscal year 2022 (FY 22) for the Rural eConnectivity Program (the ReConnect Program). In addition, this FOA defines requirements that are determined at the time a funding announcement is published, as outlined in the regulation. As part of this announcement, the Agency is also informing potential applicants and other interested parties about its intention to seek information on a topic that will help inform future funding announcements. More information is located in Section G of this announcement.
Beginning on November 24, 2021, applications can be submitted through the RUS on-line application portal until 11:59 a.m. Eastern on February 22, 2022. Applications will not be accepted after February 22, 2022 until a new application opportunity has been opened with the publication of an additional FOA in the
Applications must be submitted electronically through the RUS on-line application portal located at
For general inquiries regarding the ReConnect Program, contact Laurel Leverrier, Assistant Administrator, Telecommunications Program, Rural Utilities Service, U.S. Department of Agriculture (USDA), email
For inquiries regarding eligibility concerns, please contact the ReConnect Program Staff at
• Assisting Rural communities recover economically from the impacts of the COVID-19 pandemic, particularly disadvantaged communities.
• Ensuring all rural residents have equitable access to Rural Development programs and benefits from Rural Development funded projects.
• Reducing climate pollution and increasing resilience to the impacts of climate change through economic support to rural communities.
In addition, the Agency would like to highlight the importance of creating good-paying jobs with strong labor standards.
1. Program purpose. The ReConnect Program provides loans, grants, and loan/grant combinations to facilitate broadband deployment in rural areas. In facilitating the expansion of broadband services and infrastructure, the program will fuel long-term rural economic development and opportunities in rural America.
2. Statutory authority. The ReConnect Program is authorized by the Consolidated Appropriations Act, 2018 (Pub. L. 115-141), which directs the
For FY 22, loans, grants, and loan/grant combinations will be made for the costs of construction, improvement, or acquisition of facilities and equipment needed to facilitate broadband deployment in rural areas.
3. Definition of terms. The definitions applicable to this FOA are as follows:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
1. Funding categories, interest rates and terms (7 CFR 1740.3(b)).
i.
ii.
iii.
iv.
2. Maximum and minimum funding amounts (7 CFR 1740.3(b)).
i.
ii.
iii.
iv.
v. The minimum amount that can be requested in any ReConnect Program application is $100,000.
1. Eligibility requirements. The eligibility requirements for the ReConnect Program are published at 7 CFR 1740 Subpart B.
2. Eligible service areas. The following areas are eligible:
i. For a PFSA to be eligible for funding, at least 90 percent of the households in the PFSA must lack sufficient access to broadband. For purposes of this FOA, sufficient access to broadband means any rural area in which households have access to fixed, terrestrial broadband service of at least 100 megabits per second (Mbps) downstream and 20 Mbps upstream. Applicants must submit evidence that sufficient access to broadband does not exist for 90 percent of the households in the PFSA, identify all existing providers in the PFSA, and indicate what level of service is being provided. If these areas are found to have sufficient service, the application will be rejected.
ii. Pursuant to the Consolidated Appropriations Act, 2021 (Pub. L. 116-260), the service areas of existing RUS borrowers without sufficient access to broadband, as defined in this FOA, are eligible for ReConnect funding.
iii. Areas that receive support from the Federal Communications Commission (FCC), but are without sufficient access to broadband, as defined in this FOA, are eligible for funding under this FOA.
iv. RUS will offer funding in areas receiving or under consideration for a Rural Digital Opportunity Fund (RDOF) award because RDOF funds both operational expenses and capital expenses, while ReConnect funds only capital expenses. However, the application should explain why RUS should provide additional funding. For example, will the applicant commit to an accelerated deployment schedule if it receives RUS funding. RUS will also require all ReConnect awardees receiving or under consideration for RDOF funding to submit a statement certifying that the funds requested from ReConnect have not been and will not be reimbursed by the RDOF award. That is, funds must be used only for complementary purposes and not for duplicative ones, and therefore funding recipients cannot claim that both RDOF and ReConnect funds were used to pay for the same labor or materials used to deploy broadband to specific locations or to procure the same unit of network equipment. Recipients that receive both RDOF and ReConnect funding must keep separate accounts to track the sources and uses of each funding source as needed to support the certification statement submitted with its ReConnect application.
v. If two or more applications are submitted for the same non-Tribal Land area receiving or under consideration for an RDOF award, and one of those applications is submitted by the RDOF winning bidder, or the winning bidder's assignee, and its application scores equally as high as the other application(s) for the area, RUS will give preference to the applicant receiving or under consideration for the RDOF award, except that on Tribal Lands, RUS will give preference to the applicant that has a Tribal Government Resolution of Consent.
vi. If an applicant has applied for or is receiving other federal funding to deploy broadband in all or part of the PFSA, the applicant should explain how RUS funding will be complementary to but not duplicative of the other funding. ReConnect awardees will be required to submit a statement certifying that the funds requested from ReConnect have not been and will not be reimbursed by any other federal funding mechanism.
3. Tribal Government Resolution of Consent. Pursuant to 7 CFR 1740.60(d)(19), a certification from the appropriate tribal official is required if service is being proposed over or on tribal lands. The appropriate certification is a Tribal Government Resolution of Consent. The appropriate tribal official is the Tribal Council of the Tribal Government with jurisdiction over the tribal lands at issue. Any applicant that fails to provide a certification to provide service on the tribal lands identified in the PFSA will not be considered for funding.
4. Pre-application expenses. The costs associated with satisfying the environmental review requirements are eligible for reimbursement under this category. Up to three percent of the requested award funds can be used for this purpose. Please note that any environmental expenses will count as part of the overall five percent that is allowable for pre-application expenses.
1. All requirements for submission of an application under the ReConnect Program are subject to 7 CFR part 1740.
2. Applications must be submitted through the Agency's online application system located on the ReConnect web page,
3. Applicants can submit only one application. Applicants may start multiple applications in the system but only one can be submitted.
1. Evaluation. All applications are subject to the submission and evaluation requirements contained in 7 CFR 1740, Subpart E.
2. Scoring. Applications will be scored based on the following criteria:
i.
ii.
iii.
iv.
v.
Applicants should include in their applications a description of whether and, if so, how the project will incorporate strong labor standards, including whether workers (including contractors and subcontractors) will be paid wages at or above the prevailing rate;
For applicants that commit to strong labor standards, consistent with Tribal Laws when the project proposes to build infrastructure on Tribal Lands, 20 points will be awarded. Projects that propose to build infrastructure on Tribal Lands must follow Tribal Laws such as Tribal Employment Rights Ordinances to be in compliance with a ReConnect award, regardless of receiving points under this standard. The Agency reserves the right to adjust award amounts for unforeseen circumstances.
vi.
vii.
viii.
ix.
x.
1.
2.
3.
As noted in the Summary section of this announcement, RUS intends to issue a Request for Information (RFI) seeking feedback from potential applicants and other interested parties on whether the requirement for facilities constructed with RUS funding to provide 100 Mbps symmetrical service to every premise in the proposed funded service area (PFSA) at the same time should apply in future funding rounds. The feedback from that RFI will help inform future funding announcements, including potentially scoring criteria.
Any questions should be addressed to the contact information located in the
1.
2.
3.
Program Information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information (
To file a program discrimination complaint, a complainant should complete a Form AD-3027,
(1)
(2)
(3)
USDA is an equal opportunity provider, employer, and lender.
Enforcement and Compliance, International Trade Administration, Department of Commerce
Applicable October 19, 2021.
Mark Harrison, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0357.
On September 29, 2021, the U.S. Department of Commerce (Commerce) received an antidumping duty (AD) petition concerning imports of freight rail coupler systems and certain components thereof (freight rail couplers) from the People's Republic of China (China) filed in proper form on behalf of the Coalition of Freight Coupler Producers (the petitioner).
On October 1, 4, 8, and 15, 2021, Commerce requested supplemental information pertaining to certain aspects of the Petition in both general and AD-specific separate supplemental questionnaires and phone calls with the petitioner.
In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), the petitioner alleges that imports of freight rail couplers from China are being, or are likely to be, sold in the United States at less than fair value (LTFV) within the meaning of section 731 of the Act and that imports of such products are materially injuring, or threatening material injury to, the domestic freight rail couplers industry in the United States. Consistent with section 732(b)(1) of the Act, the Petition is accompanied by information reasonably available to the petitioner supporting the allegation.
Commerce finds that the petitioner filed the Petition on behalf of the domestic industry because the petitioner is an interested party, as defined in section 771(9)(E) of the Act. Commerce also finds that the petitioner demonstrated sufficient industry support for the initiation of the requested AD investigation.
Because China is a non-market economy (NME) country, pursuant to 19 CFR 351.204(b)(1), the period of investigation (POI) is January 1, 2021, through June 30, 2021.
The product covered by this investigation is freight rail couplers from China. For a full description of the scope of this investigation,
On October 4, 8, and 15, 2021, Commerce requested further information from the petitioner regarding the proposed scope to ensure that the scope language in the Petition is an accurate reflection of the products for which the domestic industry is seeking relief.
As discussed in the
Commerce requests that any factual information that parties consider relevant to the scope of the investigation be submitted during this period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigation may be relevant, the party may contact Commerce and request permission to submit the additional information. All scope submissions must be filed on the records of the concurrent AD and CVD investigations.
All submissions to Commerce must be filed electronically via Enforcement and Compliance's (E&C's) Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS), unless an exception applies.
Commerce is providing interested parties an opportunity to comment on the appropriate physical characteristics of freight rail couplers to be reported in response to Commerce's AD questionnaires. This information will be used to identify the key physical characteristics of the subject merchandise in order to report the relevant factors of production (FOPs) accurately, as well as to develop appropriate product-comparison criteria.
Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. In order to consider the suggestions of interested parties in developing and issuing the AD questionnaires, all product characteristics comments must be filed by 5:00 p.m. ET on November 8, 2021, which is 20 calendar days from the signature date of this notice. Any rebuttal comments, which may include factual information, must be filed by 5:00 p.m. ET on November 18, 2021, which is 10 calendar days after the
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, Commerce shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs Commerce to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both Commerce and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, the petitioner does not offer a definition of the domestic like product distinct from the scope of the investigation.
In determining whether the petitioner has standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petition with reference to the domestic like product as defined in the “Scope of the Investigation,” in the appendix to this notice. To establish industry support, the petitioner provided its own production of freight rail couplers in 2020.
On October 7, 2021, we received comments on industry support from Wabtec Corporation (Wabtec), a U.S. importer of freight rail couplers.
Our review of the data provided in the Petition, the First General Issues Supplement, the Second General Issues Supplement, Petitioner Letters I and II, and other information readily available to Commerce indicates that the petitioner has established industry support for the Petition.
The petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at LTFV. In addition, the petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The petitioner contends that the industry's injured condition is illustrated by a significant volume of subject imports; reduced market share; underselling and price depression and/or suppression; lost sales and revenues; declines in production, U.S. shipments, and capacity utilization; decline in employment; decline in financial performance; and the magnitude of the estimated dumping margin.
The following is a description of the allegations of sales at LTFV upon which Commerce based its decision to initiate the AD investigation of imports of freight rail couplers from China. The sources of data for the deductions and adjustments relating to U.S. price and normal value (NV) are discussed in greater detail in the China AD Initiation Checklist.
The petitioner based export price (EP) on information from a quoted sales offer for freight rail couplers produced in and exported from China by a Chinese producer.
Commerce considers China to be an NME country.
The petitioner states that Brazil is an appropriate surrogate country because Brazil is a market economy country that is at a level of economic development comparable to that of China and is a significant producer of comparable merchandise.
Interested parties will have the opportunity to submit comments regarding surrogate country selections and, pursuant to 19 CFR 351.301(c)(3)(i), will be provided an opportunity to submit publicly available information to value FOPs within 30 days before the scheduled date of the preliminary determination.
The petitioner used the product-specific consumption rates of a U.S. producer of freight rail couplers as a surrogate to value Chinese manufacturers' FOPs.
Based on the data provided by the petitioner, there is reason to believe that imports of freight rail couplers from China are being, or are likely to be, sold in the United States at LTFV. Based on a comparison of EP to NV, in accordance with sections 772 and 773 of the Act, the estimated dumping margins for freight rail couplers from China are 142.98 and 147.11 percent
Based upon our examination of the Petition on freight rail couplers from China and supplemental responses, we find that the Petition meets the requirements of section 732 of the Act. Therefore, we are initiating an AD investigation to determine whether imports of freight rail couplers from China are being, or are likely to be, sold in the United States at LTFV. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determination no later than 140 days after the date of this initiation.
In the Petition, the petitioner named eight companies in China as producers and/or exporters of freight rail couplers.
In accordance with our standard practice for respondent selection in AD investigations involving NME countries, Commerce selects respondents based on quantity and value (Q&V) questionnaires in cases where it has determined that the number of companies is large and it cannot individually examine each company based upon its resources. Therefore, considering the number of producers and exporters identified in the Petition, Commerce will solicit Q&V information that can serve as a basis for selecting exporters for individual examination in the event that Commerce decides to limit the number of respondents individually examined pursuant to section 777A(c)(2) of the Act. Because there are eight producers and/or exporters identified in the Petition, Commerce has determined that it will
In addition, Commerce will post the Q&V questionnaire along with filing instructions on E&C's website at
Responses to the Q&V questionnaire must be submitted by the relevant Chinese producers/exporters no later than 5:00 p.m. ET on November 2, 2021, which is two weeks from the signature date of this notice. All Q&V questionnaire responses must be filed electronically via ACCESS. An electronically filed document must be received successfully, in its entirety, by ACCESS no later than 5:00 p.m. ET on the deadline noted above.
Interested parties must submit applications for disclosure under Administrative Protective Order (APO) in accordance with 19 CFR 351.305(b). Instructions for filing such applications may be found on E&C's website at
In order to obtain separate-rate status in an NME investigation, exporters and producers must submit a separate-rate application.
Commerce will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:
{w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that {Commerce} will now assign in its NME Investigations will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question
In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), a copy of the public version of the Petition has been provided to the Government of China via ACCESS. Furthermore, to the extent practicable, Commerce will attempt to provide a copy of the public version of the Petition to each exporter named in the Petition, as provided under 19 CFR 351.203(c)(2).
Commerce will notify the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petition was filed, whether there is a reasonable indication that imports of freight rail couplers from China are materially injuring, or threatening material injury to, a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). Section 351.301(b) of Commerce's regulations requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301 or as otherwise specified by Commerce. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, Commerce will inform parties in a letter or memorandum of the deadline (including a specified time) by
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. Parties wishing to participate in this investigation should ensure that they meet the requirements of these procedures (
This notice is issued and published pursuant to sections 732(c)(2) and 777(i) of the Act, and 19 CFR 351.203(c).
The scope of this investigation covers freight rail car coupler systems and certain components thereof. Freight rail car coupler systems are composed of, at minimum, four main components (knuckles, coupler bodies, coupler yokes, and follower blocks, as specified below) but may also include other items (
Subject freight rail car coupler systems and components are included within the scope whether finished or unfinished, whether imported individually or with other subject or non-subject components, whether assembled or unassembled, whether mounted or unmounted, or if joined with non-subject merchandise, such as other non-subject system parts or a completed rail car. Finishing includes, but is not limited to, arc washing, welding, grinding, shot blasting, heat treatment, machining, and assembly of various components. When a subject coupler system or subject components are mounted on or to other non-subject merchandise, such as a rail car, only the coupler system or subject components are covered by the scope.
The finished products covered by the scope of this investigation meet or exceed the AAR specifications of M-211, “Foundry and Product Approval Requirements for the Manufacture of Couplers, Coupler Yokes, Knuckles, Follower Blocks, and Coupler Parts” or AAR M-215 “Coupling Systems,” or other equivalent domestic or international standards (including any revisions to the standard(s)).
The country of origin for subject coupler systems and components, whether fully assembled, unfinished or finished, or attached to a rail car, is the country where the subject coupler components were cast or forged. Subject merchandise includes coupler components as defined above that have been further processed or further assembled, including those coupler components attached to a rail car in third countries. Further processing includes, but is not limited to, arc washing, welding, grinding, shot blasting, heat treatment, painting, coating, priming, machining, and assembly of various components. The inclusion, attachment, joining, or assembly of non-subject components with subject components or coupler systems either in the country of manufacture of the in-scope product or in a third country does not remove the subject components or coupler systems from the scope.
The coupler systems that are the subject of this investigation are currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) statistical reporting number 8607.30.1000. Unfinished subject merchandise may also enter under HTSUS statistical reporting number 7326.90.8688. Subject merchandise attached to finished rail cars may also enter under HTSUS statistical reporting numbers 8606.10.0000, 8606.30.0000, 8606.91.0000, 8606.92.0000, 8606.99.0130, 8606.99.0160, or under subheading 9803.00.5000 if imported as an Instrument of International Traffic. These HTSUS subheadings are provided for convenience and customs purposes only; the written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that polyester textured yarn (yarn) from Malaysia is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation is October 1, 2019, through September 30, 2020.
Applicable October 25, 2021.
Daniel Alexander, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4313.
On June 3, 2021, Commerce published in the
For a complete description of the events that followed the
On May 26, 2021, we issued the Preliminary Scope Decision Memorandum.
The product covered by this investigation is yarn from Malaysia. For a complete description of the scope of this investigation,
Commerce was unable to conduct on-site verification of the information relied upon in making its final determination in this investigation. However, we took additional steps in lieu of an on-site verification to verify the information relied upon in making this final determination, in accordance with section 782(i) of the Tariff Act of 1930, as amended (the Act).
All issues raised in the case and rebuttal briefs by parties in this investigation are discussed in the Issues and Decision Memorandum. A list of the issues raised in the Issues and Decision Memorandum is attached to this notice as Appendix II.
Section 735(c)(5)(A) of the Act provides that the estimated weighted-average dumping margin for all other producers and exporters not individually investigated shall be equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated excluding rates that are zero,
Commerce calculated an individual estimated weighted-average dumping margin for Recron. Consequently, the rate calculated for Recron is also assigned as the rate for all other producers and exporters.
Based on our analysis of the comments received, we made certain changes to the dumping margin calculations for Recron.
Commerce determines that the following estimated weighted-average dumping margins exist:
Commerce intends to disclose its calculations and analysis performed in this final determination to interested parties within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
In accordance with section 735(c)(1)(B) of the Act, Commerce will instruct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all entries of yarn from Malaysia, as described in Appendix I of this notice, which were entered or withdrawn from warehouse for consumption on or after June 3, 2021, the date of publication of the
Pursuant to section 735(c)(1)(B)(ii) of the Act, upon the publication of this notice, Commerce will instruct CBP to require a cash deposit equal to the weighted-average amount by which the normal value exceeds U.S. price as follows: (1) The cash deposit rate for the companies listed above will be equal to the company-specific estimated weighted-average dumping margins determined in this final determination; (2) if the exporter is not identified above, but the producer is, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin established for that producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will be equal to the all-others estimated weighted-average dumping margin.
These suspension of liquidation instructions will remain in effect until further notice.
In accordance with section 735(d) of the Act, we will notify the International Trade Commission (ITC) of our final affirmative determination of sales at less than fair value. Because the final determination in this investigation is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of subject merchandise from Indonesia no later than 45 days after our final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated, and all cash deposits posted will be refunded. If the ITC determines that such injury does exist, Commerce will issue an antidumping duty order directing CBP to assess, upon further instruction by Commerce, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse,
This notice serves as a reminder to the parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act, and 19 CFR 351.210(c).
The merchandise covered by this investigation, polyester textured yarn, is synthetic multifilament yarn that is manufactured from polyester (polyethylene terephthalate). Polyester textured yarn is produced through a texturing process, which imparts special properties to the filaments of the yarn, including stretch, bulk, strength, moisture absorption, insulation, and the appearance of a natural fiber. This scope includes all forms of polyester textured yarn, regardless of surface texture or appearance, yarn density and thickness (as measured in denier), number of filaments, number of plies, finish (luster), cross section, color, dye method, texturing method, or packaging method (such as spindles, tubes, or beams).
The merchandise subject to this investigation is properly classified under subheadings 5402.33.3000 and 5402.33.6000 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) has determined that the manufacturers/exporters of crystalline silicon photovoltaic cells, whether or not assembled into modules (solar cells), from the People's Republic of China (China) listed in the “Final Results of Review” section below, did not sell subject merchandise in the United States at less than normal value during the period of review (POR) December 1, 2018, through November 30, 2019.
Applicable October 25, 2021.
Jeff Pedersen or Aleksandras Nakutis, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2769 or (202) 482-3147, respectively.
On April 22, 2021, Commerce published the
The merchandise covered by this order is crystalline silicon photovoltaic cells, and modules, laminates, and panels, consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including, but not limited to, modules, laminates, panels and building integrated materials.
We addressed all of the issues that were raised in interested parties' case and rebuttal briefs in the Issues and Decision Memorandum. A list of the sections in the Issues and Decision Memorandum, including a list of issues that parties raised, and to which we responded, is in the appendix to this notice. The Issues and Decision Memorandum is a public document and
We have continued to find that, during the POR, there were no entries of subject merchandise into the United States from, or exports or sales of subject merchandise to the United States by, the following companies: (1) BYD (Shangluo) Industrial Co., Ltd.; (2) Changzhou Trina Solar Energy Co., Ltd., Trina Solar (Changzhou) Science and Technology Co., Ltd., Yancheng Trina Solar Energy Technology Co., Ltd., Changzhou Trina Solar Yabang Energy Co., Ltd., Turpan Trina Solar Energy Co., Ltd., Hubei Trina Solar Energy Co., Ltd., Trina (Hefei) Science and Technology Co., Ltd.; and (3) Shanghai BYD Co., Ltd.
Since issuing the
No parties commented on our preliminary separate rate findings. Therefore, we have continued to grant Jinko
The statute and Commerce's regulations do not address the rate to apply to respondents not selected for individual examination in a non-market economy (NME) administrative review who are eligible for a separate rate. When considering which rate to apply to such respondents, Commerce generally looks to section 735(c)(5) of the Tariff Act of 1930, as amended (the Act), which provides instructions for calculating the all-others rate in an antidumping duty investigation. Section 735(c)(5)(A) of the Act instructs Commerce to base the all-others rate on the estimated weighted-average dumping margins established for the exporters and producers individually investigated, excluding any dumping margins that are zero,
The SAA provides that when the dumping margins for all individually examined respondents are zero,
We calculated weighted-average dumping margins of zero percent for both mandatory respondents. Accordingly, pursuant to section 735(c)(5)(B) of the Act and the CAFC's decisions in
We are assigning the following dumping margins to the firms listed below for the period December 1, 2018, through November 30, 2019:
Commerce's policy regarding the conditional review of the China-wide entity applies to this administrative review.
Pursuant to 19 CFR 351.224(b), within five days of the publication of this notice in the
Pursuant to section 751(a)(2)(C) of the Act and 19 CFR 351.212(b), Commerce will determine, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise covered by the final results of this review. Because the respondents' weighted average dumping margins are zero percent, we will instruct CBP to liquidate appropriate entries without regard to antidumping duties.
Where merchandise was entered into the United States under the case number of a mandatory respondent in this review during the POR (
The following cash deposit requirements will be effective upon publication of the final results of this administrative review in the
This notice serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information
This determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On September 7, 2021, the Department of Commerce (Commerce) published the initiation and preliminary results of a changed circumstances review (CCR) of the antidumping duty (AD) order on certain activated carbon (activated carbon) from the People's Republic of China (China). For these final results, Commerce continues to find that Jacobi Carbons AB (Jacobi AB) and its affiliates, Tianjin Jacobi International Trading Co. Ltd. (Tianjin Jacobi) and Jacobi Carbons Industry (Tianjin) Co. Ltd. (JCC) (collectively, Jacobi), should be collapsed with its new wholly-owned Chinese affiliate, Jacobi Adsorbent Materials (JAM), and the single entity, inclusive of JAM, should be assigned the same AD cash deposit rate assigned to Jacobi for purposes of determining AD liability in this proceeding.
Applicable October 25, 2021.
Jinny Ahn, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0339.
On September 7, 2021, Commerce published the
The merchandise covered by the scope of the
For the reasons stated in the
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). 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.
We are issuing this determination and publishing these final results and notice in accordance with sections 751(b)(1) and 777(i)(1) and (2) of the Tariff Act of 1930, as amended, and 19 CFR 351.216 and 351.221(c)(3).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that polyester textured yarn from Indonesia is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation is October 1, 2019, through September 30, 2020.
Applicable October 25, 2021.
Toni Page or Peter Shaw, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1398 or (202) 482-0697, respectively.
On June 3, 2021, Commerce published in the
For a complete description of the events that followed the
The Issues and Decision Memorandum is a public document and is available electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
On May 26, 2021, we issued a Preliminary Scope Decision Memorandum.
The product covered by this investigation is polyester textured yarn from Indonesia. For a complete description of the scope of this investigation,
Commerce was unable to conduct on-site verification of the information relied upon in making its final determination in this investigation. However, we took additional steps in lieu of an on-site verification to verify the information relied upon in making this final determination, in accordance with section 782(i) of the Tariff Act of 1930, as amended (the Act).
All issues raised in the case and rebuttal briefs by parties in this investigation are discussed in the Issues and Decision Memorandum, which is hereby adopted by this notice. A list of the issues raised in the Issues and Decision Memorandum is attached to this notice as Appendix II.
Based on our analysis of the comments received from interested parties, we made certain changes to the dumping margin calculations for PT. Asia Pacific Fibers Tbk (Asia Pacific), PT. Mutu Gading Tekstil (Mutu Gading), and the All-Others rate. For a discussion of these changes,
We find that the use of facts available is warranted in determining the rate for mandatory respondent PT. Polyfin Canggih (Polyfin), pursuant to sections 776(a)(1) and (2)(A)-(C) of the Act, and the rate for mandatory respondent Asia Pacific, pursuant to sections 776(a)(1) and (2)(A)-(D) of the Act.
Section 735(c)(5)(A) of the Act provides that the estimated weighted-average dumping margin for all other producers and exporters not individually investigated shall be equal to the weighted average of the estimated weighted-average dumping margins established for individually investigated exporters and producers, excluding rates that are zero,
Commerce calculated an individual estimated weighted-average dumping margin for Mutu Gading but is using an
Commerce determines that the following estimated weighted-average dumping margins exist:
Commerce intends to disclose its calculations and analysis performed to interested parties in this final determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
In accordance with section 735(c)(1)(B) of the Act, Commerce will instruct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all entries of polyester textured yarn from Indonesia, as described in Appendix I of this notice, which were entered or withdrawn from warehouse for consumption on or after June 3, 2021, the date of publication of the
Pursuant to section 735(c)(1)(B)(ii) of the Act, upon the publication of this notice, Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin or the estimated all-others rate, as follows: (1) The cash deposit rate for the respondents listed above will be equal to the company-specific estimated weighted-average dumping margins determined in this final determination; (2) if the exporter is not a respondent identified above, but the producer is, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin established for that producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will be equal to the all-others estimated weighted-average dumping margin. These suspension of liquidation instructions will remain in effect until further notice.
In accordance with section 735(d) of the Act, we will notify the International Trade Commission (ITC) of our final affirmative determination of sales at LTFV. Because the final determination in this investigation is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of subject merchandise from Indonesia no later than 45 days after our final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated and all cash deposits posted will be refunded. If the ITC determines that such injury does exist, Commerce will issue an antidumping duty order directing CBP to assess, upon further instruction by Commerce, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice serves as a reminder to the parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act, and 19 CFR 351.210(c).
The merchandise covered by this investigation, polyester textured yarn, is synthetic multifilament yarn that is manufactured from polyester (polyethylene terephthalate). Polyester textured yarn is produced through a texturing process, which imparts special properties to the filaments of the yarn, including stretch, bulk, strength, moisture absorption, insulation, and the appearance of a natural fiber. This scope includes all forms of polyester textured yarn, regardless of surface texture or appearance, yarn density and thickness (as measured in denier), number of filaments, number of plies, finish (luster), cross section, color, dye method, texturing method, or packaging method (such as spindles, tubes, or beams).
The merchandise subject to this investigation is properly classified under subheadings 5402.33.3000 and 5402.33.6000 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that polyester textured yarn from the Socialist Republic of Vietnam (Vietnam) is being, or is likely to be, sold in the United States at less than fair value. The period of investigation is April 1, 2020, through September 30, 2020.
Applicable October 25, 2021.
Preston Cox or Yang Jin Chun, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5041 or (202) 482-5760, respectively.
On June 3, 2021, Commerce published its
For a complete description of the events that followed the
On May 26, 2021, we issued the Preliminary Scope Decision Memorandum.
The product covered by this investigation is polyester textured yarn from Vietnam. For a complete description of the scope of this investigation,
Commerce was unable to conduct on-site verification of the information relied upon in making its final determination in this investigation. However, we took additional steps in lieu of an on-site verification to verify the information relied upon in making this final determination, in accordance with section 782(i) of the Tariff Act of 1930, as amended (the Act).
All issues raised in the case and rebuttal briefs by parties in this investigation are discussed in the Issues and Decision Memorandum. A list of the issues raised in the Issues and Decision Memorandum is attached to this notice as Appendix II.
We continue to find that the use of facts available is warranted in determining the rate for the Vietnam-wide entity pursuant to sections 776(a)(1) and (2)(A)-(C) of the Act.
Based on our analysis of the comments received, we made certain changes to the dumping margin calculations for the Century Single Entity and the Vietnam-wide entity.
Consistent with the
Commerce determines that the following estimated weighted-average dumping margins exist:
Commerce intends to disclose its calculations and analysis performed to interested parties in this final determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
In accordance with section 735(c)(1)(B) of the Act, Commerce will instruct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all entries of polyester textured yarn from Vietnam, as described in Appendix I of this notice, which were entered or withdrawn from warehouse for consumption on or after June 3, 2021, the date of publication of the
Pursuant to section 735(c)(1)(B)(ii) of the Act, upon the publication of this notice, Commerce will instruct CBP to require a cash deposit equal to the weighted-average amount by which the normal value exceeds U.S. price as follows: (1) The cash deposit rate for the exporter/producer combination listed in the table above will be the rate identified in the table; (2) for all combinations of Vietnamese exporters/producers of subject merchandise that have not received their own separate rate above, the cash-deposit rate will be the cash deposit rate established for the Vietnam-wide entity; and (3) for all non-Vietnamese exporters of subject merchandise which have not received their own separate rate above, the cash-deposit rate will be the cash deposit rate applicable to the Vietnamese exporter/producer combination (or the Vietnam-wide entity) that supplied that non-Vietnamese exporter. These suspension of liquidation instructions will remain in effect until further notice.
In accordance with section 735(d) of the Act, we will notify the International Trade Commission (ITC) of our final affirmative determination of sales at less than fair value. Because the final determination in this investigation is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of subject merchandise from Vietnam no later than 45 days after our final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated and all cash deposits posted will be refunded. If the ITC determines that such injury does exist, Commerce will issue an antidumping duty order directing CBP to assess, upon further instruction by Commerce, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice serves as a reminder to the parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act, and 19 CFR 351.210(c).
The merchandise covered by this investigation, polyester textured yarn, is synthetic multifilament yarn that is manufactured from polyester (polyethylene terephthalate). Polyester textured yarn is produced through a texturing process, which imparts special properties to the filaments of the yarn, including stretch, bulk, strength, moisture absorption, insulation, and the appearance of a natural fiber. This scope includes all forms of polyester textured yarn, regardless of surface texture or appearance, yarn density and thickness (as measured in denier), number of filaments, number of plies, finish (luster), cross section, color, dye method, texturing method, or packaging method (such as spindles, tubes, or beams).
The merchandise subject to this investigation is properly classified under subheadings 5402.33.3000 and 5402.33.6000 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable October 19, 2021.
Whitley Herndon, 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) 482-6274.
On September 29, 2021, the U.S. Department of Commerce (Commerce) received a countervailing duty (CVD) petition concerning imports of freight rail coupler systems and certain components thereof (freight rail couplers) from the People's Republic of China (China) filed in proper form on behalf of the Coalition of Freight Coupler Producers (the petitioner).
On October 1, 4, 8, and 15, 2021, Commerce requested supplemental information pertaining to certain aspects of the Petition.
In accordance with section 702(b)(1) of the Tariff Act of 1930, as amended (the Act), the petitioner alleges that the Government of China (GOC) is providing countervailable subsidies, within the meaning of sections 701 and 771(5) of the Act, to producers of freight rail couplers in China and that such imports are materially injuring, or threatening material injury to, the domestic industry producing in the United States. Consistent with section 702(b)(1) of the Act and 19 CFR 351.202(b), for those alleged programs on which we are initiating a CVD investigation, the Petition is supported by information reasonably available to the petitioner.
Commerce finds that the petitioner filed the Petition on behalf of the domestic industry because the petitioner is an interested party as defined in section 771(9)(E) of the Act. Commerce also finds that the petitioner demonstrated sufficient industry support with respect to the initiation of the requested CVD investigation.
Because the Petition was filed on September 29, 2021, the period of investigation is January 1, 2020, through December 31, 2020.
The merchandise covered by this investigation is freight rail couplers from China. For a full description of the scope of this investigation,
On October 1, 4, 8, and 15, 2021, Commerce requested further information from the petitioner regarding the proposed scope to ensure that the scope language in the Petition is an accurate reflection of the products for which the domestic industry is seeking relief.
As discussed in the
Commerce requests that any factual information that the parties consider relevant to the scope of the investigation be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigation may be relevant, the party may contact Commerce and request permission to submit the additional information. All scope comments must also be filed on the record of the concurrent AD and CVD investigations.
All submissions to Commerce must be filed electronically via Enforcement and Compliance (E&C)'s Antidumping Duty and Countervailing Duty Centralized
Pursuant to sections 702(b)(4)(A)(i) and (ii) of the Act, Commerce notified the GOC of the receipt of the Petition and provided it the opportunity for consultations with respect to the CVD Petition.
Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, Commerce shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs Commerce to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both Commerce and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, the petitioner does not offer a definition of the domestic like product distinct from the scope of the investigation.
In determining whether the petitioner has standing under section 702(c)(4)(A) of the Act, we considered the industry support data contained in the Petition with reference to the domestic like product as defined in the “Scope of the Investigation,” in the appendix to this notice. To establish industry support, the petitioner provided its own production of freight rail couplers in 2020.
On October 7, 2021, we received comments on industry support from Wabtec Corporation (Wabtec), a U.S. importer of freight rail couplers.
Our review of the data provided in the Petition, the First General Issues Supplement, the Second General Issues Supplement, Petitioner Letters I and II, and other information readily available to Commerce indicates that the petitioner has established industry support for the Petition.
Because China is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Act, section 701(a)(2) of the Act applies to this investigation. Accordingly, the ITC must determine whether imports of the subject merchandise from China materially injure, or threaten material injury to, a U.S. industry.
The petitioner alleges that imports of the subject merchandise are benefitting from countervailable subsidies and that such imports threaten to cause material injury to the U.S. industry producing the domestic like product. In addition, the petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The petitioner contends that the industry's injured condition is illustrated by a significant volume of subject imports; reduced market share; underselling and price depression and/or suppression; lost sales and revenues; declines in production, U.S. shipments, and capacity utilization; decline in employment; and decline in financial performance.
Based upon our examination of the Petition and supplemental responses, we find that the Petition meets the requirements of section 702 of the Act. Therefore, we are initiating a CVD investigation to determine whether imports of freight rail couplers from China benefit from countervailable subsidies conferred by the GOC. Based on our review of the Petition, we find that there is sufficient information to initiate a CVD investigation on 33 of the 35 alleged programs. Additionally, we find that there is sufficient information to initiate on the allegation of the creditworthiness of CRRC Corporation Limited (CRRC) and will explore this allegation in the investigation should CRRC be selected as a mandatory respondent. For a full discussion of the basis for our decision to initiate on each program,
The petitioner named eight companies in China as producers and/or exporters of freight rail couplers.
Producers/exporters of freight rail couplers from China that do not receive Q&V questionnaires by mail may still submit a response to the Q&V questionnaire and can obtain the Q&V questionnaire from E&C's website at
Interested parties must submit applications for disclosure under Administrative Protective Order (APO) in accordance with 19 CFR 351.305(b). Instructions for filing such applications may be found on E&C's website at
In accordance with section 702(b)(4)(A) of the Act and 19 CFR 351.202(f), a copy of the public version
Commerce will notify the ITC of its initiation, as required by section 702(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petition was filed, whether there is a reasonable indication that imports of freight rail couplers from China are materially injuring, or threatening material injury to, a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). Section 351.301(b) of Commerce's regulations requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by Commerce. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301.
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under administrative protective order in accordance with 19 CFR 351.305. Parties wishing to participate in this investigation should ensure that they meet the requirements of document submission procedures (
This notice is issued and published pursuant to sections 702 and 777(i) of the Act, and 19 CFR 351.203(c).
The scope of this investigation covers freight rail car coupler systems and certain components thereof. Freight rail car coupler systems are composed of, at minimum, four main components (knuckles, coupler bodies, coupler yokes, and follower blocks, as specified below) but may also include other items (
Subject freight rail car coupler systems and components are included within the scope whether finished or unfinished, whether imported individually or with other subject or non-subject components, whether assembled or unassembled, whether mounted or unmounted, or if joined with non-subject merchandise, such as other non-subject system parts or a completed rail car. Finishing includes, but is not limited to, arc washing, welding, grinding, shot blasting, heat treatment, machining, and assembly of various components. When a subject coupler system or subject components are mounted on or to other non-subject merchandise, such as a rail car, only the coupler system or subject components are covered by the scope.
The finished products covered by the scope of this investigation meet or exceed the AAR specifications of M-211, “Foundry and Product Approval Requirements for the Manufacture of Couplers, Coupler Yokes, Knuckles, Follower Blocks, and Coupler Parts” or AAR M-215 “Coupling Systems,” or other equivalent domestic or international standards (including any revisions to the standard(s)).
The country of origin for subject coupler systems and components, whether fully
The coupler systems that are the subject of this investigation are currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) statistical reporting number 8607.30.1000. Unfinished subject merchandise may also enter under HTSUS statistical reporting number 7326.90.8688. Subject merchandise attached to finished rail cars may also enter under HTSUS statistical reporting numbers 8606.10.0000, 8606.30.0000, 8606.91.0000, 8606.92.0000, 8606.99.0130, 8606.99.0160, or under subheading 9803.00.5000 if imported as an Instrument of International Traffic. These HTSUS subheadings are provided for convenience and customs purposes only; the written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that polyester textured yarn from Thailand is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation is October 1, 2019, through September 30, 2020.
Applicable October 25, 2021.
Stephanie Berger, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2483.
On June 3, 2021, Commerce published its
For a complete description of the events that followed the
On May 26, 2021, we issued the Preliminary Scope Decision Memorandum.
The product covered by this investigation is polyester textured yarn from Thailand. For a complete description of the scope of this investigation,
Commerce was unable to conduct on-site verification of the information relied upon in making its final determination in this investigation. However, we took additional steps in lieu of an on-site verification to verify the information relied upon in making this final determination, in accordance with section 782(i) of the Tariff Act of 1930, as amended (the Act).
All issues raised in the case and rebuttal briefs by parties in this investigation are discussed in the Issues and Decision Memorandum. A list of the issues raised in the Issues and Decision Memorandum is attached to this notice as Appendix II.
Based on our analysis of the comments received, we made certain changes to the margin calculation for Sunflag Thailand Ltd. (Sunflag) since the
The mandatory respondent Jong Stit Co., Ltd. (Jong Stit) did not respond to Commerce's initial antidumping duty questionnaire in this investigation.
Section 735(c)(5)(A) of the Act provides that the estimated weighted-
Commerce determines that the following estimated weighted-average dumping margins exist:
Commerce intends to disclose its calculations and analysis performed to interested parties in this final determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
In accordance with section 735(c)(1)(B) of the Act, Commerce will instruct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all entries of polyester textured yarn from Thailand, as described in Appendix I of this notice, which were entered or withdrawn from warehouse for consumption on or after June 3, 2021, the date of publication of the
Pursuant to section 735(c)(1)(B)(ii) of the Act and 19 CFR 351.210(d), upon the publication of this notice, we will instruct CBP to require a cash deposit for such entries of merchandise equal to the following: (1) The cash deposit rate for the respondents listed in the table above will be equal to the company-specific estimated weighted-average dumping margin determined in this final determination; (2) if the exporter is not a respondent identified above but the producer is, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin established for that producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will be equal to the all-others estimated weighted-average dumping margin listed in the table above. These suspension of liquidation instructions will remain in effect until further notice.
In accordance with section 735(d) of the Act, we will notify the International Trade Commission (ITC) of our final affirmative determination of sales at LTFV. Because the final determination in this investigation is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of subject merchandise from Thailand no later than 45 days after our final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated, and all cash deposits posted will be refunded. If the ITC determines that such injury does exist, Commerce will issue an antidumping duty order directing CBP to assess, upon further instruction by Commerce, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice serves as a reminder to the parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act, and 19 CFR 351.210(c).
The merchandise covered by this investigation, polyester textured yarn, is synthetic multifilament yarn that is manufactured from polyester (polyethylene terephthalate). Polyester textured yarn is produced through a texturing process, which imparts special properties to the filaments of the yarn, including stretch, bulk, strength, moisture absorption, insulation, and the appearance of a natural fiber. This scope includes all forms of polyester textured yarn, regardless of surface texture or appearance, yarn density and thickness (as measured in denier), number of filaments, number of plies, finish (luster), cross section, color, dye method, texturing method, or packaging method (such as spindles, tubes, or beams).
The merchandise subject to this investigation is properly classified under subheadings 5402.33.3000 and 5402.33.6000 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Based upon the timely withdrawal of all review requests, the Department of Commerce (Commerce) is rescinding the administrative reviews covering the periods of review for the antidumping duty (AD) and countervailing duty (CVD) orders identified in the table below.
Applicable October 25, 2021.
Brenda E. Brown, AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-4735.
Based upon timely requests for review, Commerce initiated administrative reviews of certain companies for the periods of review for the AD and CVD orders listed in the table below, pursuant to 19 CFR 351.221(c)(1)(i).
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the parties that requested the review withdraw their review requests within 90 days of the date of publication of the notice of initiation for the requested review. All parties withdrew their requests for the reviews listed in the table below within the 90-day deadline. No other parties requested administrative reviews of these AD/CVD orders for the periods noted in the table. Therefore, in accordance with 19 CFR 351.213(d)(1), Commerce is rescinding, in their entirety, the administrative reviews listed in the table below.
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping and/or countervailing duties on all appropriate entries during the periods of review noted above for each of the listed administrative reviews at rates equal to the cash deposit of estimated antidumping or countervailing duties, as applicable, required at the time of entry, or withdrawal of merchandise from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of this recission notice in the
This notice serves as the only reminder to importers of merchandise subject to AD orders of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties and/or countervailing duties prior to liquidation of the relevant entries during the review period. Failure to comply with this requirement could result in the presumption that reimbursement of antidumping duties and/or countervailing duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as the only reminder to parties subject to administrative protective orders (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 these segments of these proceedings. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
National Institute of Standards and Technology, Department of Commerce.
Notice of open meeting.
The National Construction Safety Team (NCST) Advisory Committee (Committee) will hold a virtual meeting via web conference on Monday, November 8, 2021, from 11:00 a.m. to 5:00 p.m. Eastern Time. The primary purposes of this meeting are to: Update the Committee on the progress of the NCST investigation focused on the impacts of Hurricane Maria in Puerto Rico and the NCST investigation focused on the Champlain Towers South partial building collapse that occurred in Surfside, Florida; finalize the Committee's annual report to Congress; and provide an overview of event scoring and readiness of teams. The agenda may change to accommodate Committee business. The final agenda will be posted on the NIST website at
The NCST Advisory Committee will meet on Monday, November 8, 2021, from 11:00 a.m. to 5:00 p.m. Eastern Time.
The meeting will be held via web conference. For instructions on how to participate in the meeting, please see the
Tanya Brown-Giammanco, Disaster and Failure Studies Program, Engineering Laboratory, NIST. Tanya Brown-Giammanco's email address is
The Committee was established pursuant to Section 11 of the NCST Act (Pub. L. 107-231, codified at 15 U.S.C. 7301
Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. app., notice is hereby given that the NCST Advisory Committee will meet on Monday, November 8, 2021, from 11:00 a.m. to 5:00 p.m. Eastern Time. The meeting will be open to the public and will be held via web conference. Interested members of the public will be able to participate in the meeting from remote locations. The primary purposes of this meeting are to: Update the Committee on the progress of the NCST investigation focused on the impacts of Hurricane Maria in Puerto Rico and the NCST investigation focused on the Champlain Towers South partial building collapse that occurred in
Individuals and representatives of organizations who would like to offer comments and suggestions related to items on the Committee's agenda for this meeting are invited to request a place on the agenda. Approximately thirty minutes will be reserved for public comments and speaking times will be assigned on a first-come, first-served basis. Public comments can be provided via email or by web conference attendance. The amount of time per speaker will be determined by the number of requests received. Questions from the public will not be considered during this period. All those wishing to speak must submit their request by email to the attention of Peter Gale at
Anyone wishing to attend this meeting via web conference must register by 5:00 p.m. Eastern Time, Wednesday, November 3, 2021, to attend. Please submit your full name, email address, and phone number to Peter Gale at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments and new information.
NMFS reviewed the Alaska, Atlantic, and Pacific regional marine mammal stock assessment reports (SARs) in accordance with the Marine Mammal Protection Act (MMPA). SARs for marine mammals in the Alaska, Atlantic, and Pacific regions were revised according to new information. NMFS solicits public comments on the draft 2021 SARs. NMFS is also requesting new information for strategic stocks that were not updated in 2021.
Comments must be received by January 24, 2022.
The 2021 draft SARs are available in electronic form via the internet at
Copies of the Alaska Regional SARs may be requested from Marcia Muto, Alaska Fisheries Science Center; copies of the Atlantic, Gulf of Mexico, and Caribbean Regional SARs may be requested from Elizabeth Josephson, Northeast Fisheries Science Center; and copies of the Pacific Regional SARs may be requested from Jim Carretta, Southwest Fisheries Science Center (see
You may submit comments or new information, identified by NOAA-NMFS-2021-0130, through the Federal e-Rulemaking Portal:
Zachary Schakner, Office of Science and Technology, 301-427-8106,
Section 117 of the MMPA (16 U.S.C. 1361
The MMPA requires NMFS and FWS to review the SARs at least annually for strategic stocks and stocks for which significant new information is available, and at least once every three years for non-strategic stocks. The term “strategic stock” means a marine mammal stock: (A) For which the level of direct human-caused mortality exceeds the potential biological removal level or PBR (defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population); (B) which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the Endangered Species Act (ESA) within the foreseeable future; or (C) which is listed as a threatened species or endangered species under the ESA or is designated as depleted under the MMPA. NMFS and FWS are required to revise a SAR if the status of the stock has changed or can be more accurately determined.
In order to ensure that marine mammal SARs constitute the best scientific information available, the updated SARs under NMFS's jurisdiction are peer-reviewed within NOAA Fisheries Science Centers and by members of three regional independent Scientific Review Groups, established under the MMPA to independently advise NMFS. As a result of the review, revision, and assessment of available data, the period covered by the 2021
NMFS reviewed the status of all marine mammal strategic stocks as required and considered whether significant new information was available for all other stocks under NMFS's jurisdiction. As a result of this review, NMFS revised a total of 50 SARs in the Alaska, Atlantic, and Pacific regions to incorporate new information. The 2021 revisions to the SARs consist primarily of updated or revised human-caused M/SI estimates and updated abundance estimates. No stocks changed in status from “non-strategic” to “strategic.” Three stocks changed in status from “strategic” to “non-strategic.” Highlights of the draft 2021 SAR revisions are discussed below.
NMFS solicits public comments on the draft 2021 SARs. To ensure NMFS is aware of new information relevant to all strategic stocks, NMFS also requests new information for strategic stocks that were not updated in 2021. Specifically, new relevant information could include peer-reviewed information on human-caused M/SI, fishery interactions, abundance, distribution, stock structure, habitat concerns, and other information on emerging concerns for strategic stocks that could be incorporated into the SARs.
In 2021, NMFS reviewed new information for 19 stocks in the Alaska Region and revised five SARs under NMFS's jurisdiction: Four strategic stocks and one non-strategic stock. A list of the revised SARs in 2021 for the Alaska region is presented in Table 1. Information on the remaining Alaska region stocks can be found in the final 2020 SARs (Muto
The updated abundance estimate for the Eastern Pacific stock of northern fur seals is 626,618 northern fur seals, based on pup production estimates on Sea Lion Rock (2014), on St. Paul and St. George Islands (mean of 2014, 2016, and 2018), and on Bogoslof Island (mean of 2015 and 2019). This is an increase from the previous estimate of 608,143 northern fur seals. The methods for estimating the population size are the same as previous years (the population size is estimated as the number of pups born at rookeries in the eastern Bering Sea multiplied by a series of expansion factors determined from a previous life table analysis). The updated minimum population estimate is 530,376 northern fur seals. The Eastern Pacific stock of northern fur seals remains classified as a strategic stock because it is designated as depleted under the MMPA.
The updated best estimate of abundance (uncorrected for animals missed on the trackline), derived from a vessel survey in 2019, is 1,302 harbor porpoise. This estimate is not statistically different from the previous (uncorrected) estimate of 975 in 2010-2012. However, the estimates for both 2010-2012 and 2019 are for the inland waters of Southeast Alaska, which is only a portion of the range of this stock. The updated minimum population estimate for this stock is 1,057 porpoise.
NMFS has temporarily withdrawn the final 2020 Eastern Bering Sea Beluga whale stock assessment report from the NMFS website in order to consult with the Alaska Beluga Whale Committee (ABWC) on the change in the stock's status from non-strategic to strategic, as is outlined in the NMFS-ABWC co-management agreement. This has been noted on the NOAA Fisheries website:
NMFS is providing this information for awareness only and is not seeking public comment on the NMFS-ABWC co-management agreement, nor the final 2020 Eastern Bering Sea Beluga whale stock assessment report.
In 2021, NMFS reviewed all 116 stocks in the Atlantic region for new information (including the Atlantic Ocean, Gulf of Mexico, and U.S. territories in the Caribbean). This year, NMFS revised 23 SARs in the Atlantic region (Table 2). No stocks changed in status from “non-strategic” to “strategic.” Three Northern Gulf of Mexico bay, sound and estuary stocks of common bottlenose dolphin changed from strategic to non-strategic (Galveston Bay, East Bay, Trinity Bay; Mississippi River Delta; and Sabine Lake). Previously, information for the Galveston Bay, East Bay, Trinity Bay stock of common bottlenose dolphins was contained within the report “Common Bottlenose Dolphin, Northern Gulf of Mexico Bay, Sound, and Estuary Stocks.” This stock now has its own report. A list of the revised SARs in the Atlantic region for 2021 is presented in Table 2. Information on the remaining Atlantic region stocks can be found in the final 2020 SARs (Hayes
The new abundance estimate calculated for the western North Atlantic right whale stock is 368 individuals, which is a decrease from the previous estimate of 412 individuals contained in the 2020 report. This updated estimate is based on a published state-space model of the sighting histories of individual whales identified using photo-identification techniques (Pace
Per recommendations by the Atlantic Scientific Review Group, a PBR was calculated for harp seal based on the minimum estimate of abundance in Canadian waters because there is no known resident population in U.S. waters. PBR for the western North Atlantic harp seal is 426,000; previously the PBR was reported as unknown. The best estimate of abundance for western North Atlantic harp seals, based on the last 2017 survey, is 7.6 million (95 percent Confidence Intervals 6.5-8.8 million; DFO 2020).
In 2021, NMFS reviewed all 85 stocks in the Pacific region (waters along the west coast of the United States, within waters surrounding the main and Northwestern Hawaiian Islands, and within waters surrounding U.S. territories in the Western Pacific) for new information, and revised SARs for 22 stocks (6 strategic and 16 non-strategic). A list of revised SARs in 2021 for the Pacific region is presented in Table 3. Information on the remaining Pacific region stocks can be found in the final 2020 SARs (Carretta
The majority of the revised Pacific SARs contain new abundance estimates from the California Current Ecosystem Survey using a consistent analysis approach. Given the heterogeneity of the 2018 survey coverage in the California Coastal Ecosystem study area, Species Distribution Models were used to estimate abundance for numerous U.S. West Coast marine mammal stocks rather than using design-based analytical approaches. The use of species distribution models for density and abundance estimation is well-established for this region and models incorporate changes in species abundance and habitat shifts over time.
U.S. Integrated Ocean Observing System (IOOS®), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of open meeting.
Notice is hereby given of a virtual meeting of the U. S. Integrated Ocean Observing System (IOOS®) Advisory Committee (Committee). The meeting is open to the public and an opportunity for oral and written comments will be provided.
The meeting will be held November 29, 2021, and December 06, 2021. The times and the agenda topics described below are subject to change.
The meeting will be held virtually. To register for the meeting and/or submit public comments, use this link
Krisa Arzayus, Designated Federal Official, U.S. IOOS Advisory Committee, U.S. IOOS Program, 1315 East-West Highway, Silver Spring, MD 20910; Phone 240-533-9455; Fax 301-713-3281; email
The Committee was established by the NOAA Administrator as directed by Section 12304 of the Integrated Coastal and Ocean Observation System Act, part of the Omnibus Public Land Management Act of 2009 (Pub. L. 111-11), and reauthorized under the Coordinated Ocean Observations and Research Act of 2020 (Pub. L. No: 116-271). The Committee advises the NOAA Administrator and the Interagency Ocean Observation Committee (IOOC) on matters related to the responsibilities and authorities set forth in section 12302 of the Integrated Coastal and Ocean Observation System Act of 2009 and other appropriate matters as the Under Secretary refers to the Committee for review and advice.
The Committee will provide advice on:
(a) Administration, operation, management, and maintenance of the Integrated Coastal and Ocean Observation System (the System);
(b) expansion and periodic modernization and upgrade of technology components of the System;
(c) identification of end-user communities, their needs for information provided by the System, and the System's effectiveness in disseminating information to end-user communities and to the general public; and
(d) additional priorities, including—
(1) a national surface current mapping network designed to improve fine scale sea surface mapping using high frequency radar technology and other emerging technologies to address national priorities, including Coast Guard search and rescue operation planning and harmful algal bloom forecasting and detection that—
(i) is comprised of existing high frequency radar and other sea surface current mapping infrastructure operated by national programs and regional coastal observing systems;
(ii) incorporates new high frequency radar assets or other fine scale sea surface mapping technology assets, and other assets needed to fill gaps in coverage on United States coastlines; and
(iii) follows a deployment plan that prioritizes closing gaps in high frequency radar infrastructure in the United States, starting with areas demonstrating significant sea surface current data needs, especially in areas where additional data will improve Coast Guard search and rescue models;
(2) fleet acquisition for unmanned maritime systems for deployment and
(3) an integrative survey program for application of unmanned maritime systems to the real-time or near real-time collection and transmission of sea floor, water column, and sea surface data on biology, chemistry, geology, physics, and hydrography;
(4) remote sensing and data assimilation to develop new analytical methodologies to assimilate data from the System into hydrodynamic models;
(5) integrated, multi-State monitoring to assess sources, movement, and fate of sediments in coastal regions;
(6) a multi-region marine sound monitoring system to be—
(i) planned in consultation with the Interagency Ocean Observation Committee, the National Oceanic and Atmospheric Administration, the Department of the Navy, and academic research institutions; and
(ii) developed, installed, and operated in coordination with the National Oceanic and Atmospheric Administration, the Department of the Navy, and academic research institutions; and
(e) any other purpose identified by the Administrator or the Council.
The meeting will focus on (1) providing the Committee with programmatic updates from the U.S. IOOS program and the IOOC and (2) presentations and discussion to determine the work plan for the Committee over the next three years. The latest version of the agenda will be posted at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of the Atlantic shark fishery review (SHARE) document; request for comments.
NMFS announces the availability of the draft SHARE document. As part of the overall review of the current state of the shark fishery, NMFS examined all aspects of commercial and recreational shark fisheries conservation and management, shark depredation, and additional factors affecting the shark fishery. As a comprehensive review of the shark fishery, the SHARE document identifies areas of success and concerns in the fishery and identifies potential future revisions to regulations and management measures. NMFS anticipates that revisions to the regulations and/or management measures would occur via future rulemaking and would include appropriate opportunity for public comment.
Written comments must be received by January 3, 2022. NMFS will hold one public webinar, at which public comments will be accepted, on December 8, 2021. For specific dates and times, see the
Electronic copies of this document may be obtained on the internet at:
You may submit comments on this document, identified by NOAA-NMFS-2021-0027, via the Federal e-Rulemaking Portal. Go to
Guy DuBeck (
Under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS is responsible for the sustainable management of Atlantic Highly Migratory Species (HMS) (16 U.S.C. 1852(a)(3)) and must comply with all applicable provisions of the Act when implementing conservation and management measures for shark stocks and fisheries. Under the Magnuson-Stevens Act, conservation and management measures must prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery (16 U.S.C. 1851(a)(1)). Where a fishery is determined to be in or approaching an overfished condition, NMFS must adopt conservation and management measures to prevent or end overfishing and rebuild the fishery. (16 U.S.C. 1853(a)(10); 1854(e)). In addition, NMFS must, among other things, comply with the Magnuson-Stevens Act's ten National Standards, including a requirement to use the best scientific information available as well as to consider potential impacts on residents of different States, efficiency, costs, fishing communities, bycatch, and safety at sea (16 U.S.C. 1851 (a)(1-10)). Internationally, the International Commission for the Conservation of Atlantic Tunas (ICCAT) has issued recommendations for the conservation of shark species caught in association with ICCAT fisheries, while the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) has passed measures that place requirements or restrictions on the trade of some shark species and shark fins. The purpose of the SHARE document is to analyze trends within the commercial and recreational shark fisheries to identify main areas of success and concerns with conservation and management measures and find ways to improve management of the shark fishery.
Atlantic shark fisheries have been federally managed since 1993. Unlike stock assessments, which focus on abundance of stocks and their status, SHARE focuses on the overall state of fishery to assist in determining next steps for management. NMFS began this review after noticing certain trends in the fishery. In the commercial fishery, trends include reduced landings, a decrease in active vessels, and an increase in shark discards. In the recreational fishery, trends include an increase in catch and release rates, an increase in effort by state-water or shore-based fishermen, and a decrease in targeted pelagic shark trips. Through
• Review the current state of the Atlantic shark fishery;
• Identify areas of success in the fishery;
• Identify areas of concern in the fishery; and
• Identify ways to improve the fishery and potential future shark management actions.
As part of SHARE, NMFS reviewed commercial shark fishery vessel permits, trips targeting or retaining sharks, shark landings, dealer permits, and markets. These data indicate that catch of available quota and participation in the commercial shark fishery has dramatically declined from historical levels. In the recreational shark fishery, NMFS reviewed the recent permits with shark endorsements, fishing effort, survey data, and tournament landings. Shark depredation, which occurs when a shark eats or preys upon fish that are caught on fishing gear, has been a growing concern in a wide variety of commercial and recreational fisheries. While the number of reports of depredation have increased, the underlying cause of the increase is uncertain—it could be due to an increase in the number of sharks as stocks rebuild; a learned behavior by sharks as they recognize motors, fishing techniques, or shark feeding locations as a source of food (this learned behavior is found in other animals such as marine mammals); an increase in the number of people using social media to report the depredation; or any combination of the above. Lastly, in the SHARE document, NMFS analyzed additional factors beyond the Federal shark fishery including other fisheries, state shark fin sale prohibitions, and binding international recommendations.
The SHARE document as a whole provides a comprehensive review of the current state of the Atlantic shark fishery, identifies areas of success and concern, and identifies regulations and management measures for potential future revision. Overall, this review has found that NMFS is sustainably managing shark stocks; however, catch and participation in the commercial shark fishery is in decline. This decline is happening despite fishermen having available quotas for many species, and, in most regions, an open season year-round. The review has also identified a need in the recreational fishery to improve species identification that could improve shark fishery data, thus improving management overall. Additionally, it is likely that other fisheries, state shark fin sale prohibitions, and binding international recommendations have directly and indirectly affected fishing effort and landings from 2014 through 2019. Possible changes that could increase the productivity of the commercial shark fishery while remaining consistent with the Magnuson-Stevens Act and the 2006 Consolidated Atlantic HMS Fishery Management Plan and its amendments could include modifications to:
• Vessel permit structure, including shifting incidental permits to open-access permits;
• Commercial vessel retention limits for large coastal shark, blacknose, and other shark management groups;
• Regional and sub-regional quotas to better match regional expectations and opportunities;
• Recreational size and bag limits; and,
• Reporting mechanisms to enhance data collection of recreational shark species and shark depredation events.
NMFS anticipates that revisions to the above management measures would occur via future rulemaking to modify HMS regulations, with appropriate opportunity for public comment. Regardless of timing, NMFS believes changes to the shark fishery are warranted to improve the overall health of the fishery and shark stocks.
NMFS will consider public comments before finalizing SHARE. Comments on the draft SHARE document may be submitted via
The public is reminded that NMFS expects participants at the public webinar to conduct themselves appropriately. At the beginning of the webinar, the moderator will explain how the webinar will be conducted and how and when participants can provide comments. NMFS representative(s) will structure the webinar so that all members of the public will be able to comment, if they so choose, regardless of the controversial nature of the subject(s). Participants are expected to respect the ground rules, and those that do not may be asked to leave the webinar.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's (MAFMC's) Summer Flounder, Scup, and Black Sea Bass Monitoring Committee will hold a public meeting.
The meeting will be held on Wednesday, November 10, 2021, from 9 a.m. to 1 p.m. For agenda details, see
The meeting will be held via webinar. Connection information will be posted prior to the meeting on the to the MAFMC's online calendar at
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The Summer Flounder, Scup, and Black Sea Bass Monitoring Committee will meet to develop recommendations for 2022 federal waters recreational management measures (
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shelley Spedden, (302) 526-5251 at least 5 days prior to the meeting date.
The United States Patent and Trademark Office (USPTO) will submit the following information collection request to OMB for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The USPTO invites comment on this information collection renewal, which helps the USPTO assess the impact of its information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
This information collection covers various communications submitted by individuals and businesses to the USPTO occurring after registration of a trademark. One type of communication is a request to amend a registration to delete goods or services that are no longer being used by the registrant or registration owner. Registered marks remain on the register for 10 years and can be renewed, but will be cancelled unless the registration owner files with the USPTO a declaration attesting to the continued use (or excusable non-use) of the mark in commerce, and a renewal application, within specific deadlines. Registration owners may also request to amend or divide a registration, respond to a post-registration Office action, and surrender a registration.
This information collection request may be viewed at
Written comments and recommendations for this information collection should be submitted within 30 days of the publication of this notice on the following website
Further information can be obtained by:
•
•
Office of the Under Secretary of Defense for Personnel and Readiness, Department of Defense (DoD).
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by November 24, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Angela Duncan, 571-372-7574, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Ms. Duncan at
Office of the Under Secretary of Defense for Personnel and Readiness, Department of Defense (DoD).
Information collection notice.
In compliance with the
Consideration will be given to all comments received by December 27, 2021.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Defense Human Resources Activity, 4800 Mark Center Drive, Suite 08F05 Alexandria, VA 22350, LaTarsha Yeargins, 571-372-2089.
Office of the Under Secretary of Defense for Acquisition and Sustainment, Department of Defense (DoD).
Information collection notice.
In compliance with the
Consideration will be given to all comments received by December 27, 2021.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Office of Local Defense Community Cooperation, 2231 Crystal Drive, Arlington, VA 22202 ATTN: Mr. James Holland or call 703-697-2188.
The Consolidated Appropriations Act for Fiscal Year 2021 (Pub. L. 116-260) provides $60 million to the Office of Local Defense Community Cooperation (OLDCC) for the Defense Community Infrastructure Program (DCIP). This information collection supports the awarding of grants under DCIP via the initial grant proposal package prepared in accordance to a Federal Funding Opportunity Announcement posted on the
Respondents will be State or local governments and not-for-profit, member-owned utility services owning infrastructure outside of, but supporting, a military installation. A Proposal Package shall include the following information: Point of contact; summary of installation need; letter of endorsement from the Commander of the local installation; description of the proposed project with explanation of how it addresses the installation need; demonstration of the technical feasibility of the project; identification of other parties involved in the project; overview and commitment of all funding sources; uses of project funding, including a total project cost estimate with major cost elements broken out for project administration, inspection, construction, utilities, and contingency costs; project schedule demonstrating that the project can commence within 12 months upon receipt of a grant and that the grant funds will be spent steadily and expeditiously once the project commences, and completed no later than 5 years following the obligation of Federal funds; Environmental Approvals; State and Local Planning (if applicable); Evidence of the intended recipient's ability and authority to manage grants; Documentation that the Submitting Official is authorized by the proposer to submit a proposal and subsequently apply for assistance; and National Security Waiver Attestation (if appropriate).
Office of the Under Secretary of Defense for Personnel and Readiness, Department of Defense (DoD).
5-Day information collection notice.
Consistent with the Paperwork Reduction Act of 1995 and its implementing regulations, this document provides notice DoD is submitting an Information Collection Request to the Office of Management and Budget (OMB) to collect information on incident and case management data on problematic sexual behavior between children and youth as required by the John S. McCain National Defense Authorization Act for Fiscal Year 2019, Section 1089, Policy on Response to Juvenile on Juvenile Problematic Sexual Behavior Committed on Military Installations. This statute requires policy development, data collection, and Family Advocacy Program (FAP) involvement through a multi-disciplinary response to problematic sexual behavior in children and youth (PSB-CY) occurring on military installations. More specifically, the legislation requires the data collection to include a description of the incident, whether a multidisciplinary review by the FAP was completed, whether the incident also involved an investigation by law enforcement or other entity, and whether action was taken to support and assist children, youth, and families in response to the incident and a description of any action taken.
Comments must be received by November 1, 2021.
The Department has requested emergency processing from OMB for this information collection request by 5 days after publication of this notice. Interested parties can access the supporting materials and collection instrument as well as submit comments and recommendations to OMB at
Angela Duncan, 571-372-7574, or
This information collection provides incident and case management data on incidents of problematic sexual behavior between children and youth as required by the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232), Section 1089, Policy on Response to Juvenile on Juvenile Problematic Sexual Behavior Committed on Military Installations. This statute requires policy development, data collection, and Family Advocacy Program (FAP) involvement through a multi-disciplinary response to problematic sexual behavior in children and youth (PSB-CY) occurring on military installations. The purpose of the collection is to determine eligibility for FAP services and to initiate a case record that will inform and support the development and implementation of well-coordinated safety plans, evidence informed support and intervention services, and referrals to specialized care when needed that meet the complex needs of children, youth, and their families involved in incidents of PSB-CY. The PSB-CY Information System is in the final phase of beta testing in anticipation of production release early October 2021 as specified in the system development contract. The PSB-CY development contract ends 12 November. Approval of the emergency processing will allow deployment of the PSB-CY Information System as programmed and contribute to the Department's ability to respond and intervene with appropriate treatment and services to help military-affiliated children, youth, and their families who have been involved in these incidents. Delay of the information collection presents significant risk for a smooth transition, namely the ability for the new managing contractor to take full advantage of current PSB-CY development contractor expertise and help desk support post go-live. Disrupting the transition carries a significant operational risk to support the operations and sustainment of the PSB-CY application, including the high volume of data. MC&FP planned for the PSB-CY development contractor to provide support as part of the transition plan. If information collection and system go-live is not expedited, this transition support will be unavailable.
Office of the Under Secretary of Defense for Personnel and Readiness, Department of Defense (DoD).
Information collection notice.
In compliance with the
Consideration will be given to all comments received by December 27, 2021.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Defense Human Resources Activity, 4800 Mark Center Drive, Suite 08F05, Alexandria, VA 22350, LaTarsha Yeargins, 571-372-2089.
The Office of the Under Secretary of Defense for Research and Engineering, Department of Defense (DoD).
Information collection notice.
In compliance with the
Consideration will be given to all comments received by December 27, 2021.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Defense Technical Information Center, 8725 John J. Kingman Road, Ft. Belvoir, VA 22060-6218 ATTN: Ms. Vakare Valaitis, or call (703) 767-9159.
Office of the Assistant Secretary of Defense for Health Affairs, Department of Defense (DoD).
Information collection notice.
In compliance with the
Consideration will be given to all comments received by December 27, 2021.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Health Agency, ATTN: Zelly Zim, 8111 Gatehouse Road, 229D, Falls Church, VA 22042 or call 571-232-1551.
Office of the Under Secretary of Defense for Acquisition and Sustainment, Department of Defense (DoD).
Information collection notice.
In compliance with the
Consideration will be given to all comments received by December 27, 2021.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Office of Local Defense Community Cooperation, 2231 Crystal Drive, Arlington, VA 22202 ATTN: Mr. James Holland or call 703-697-2188.
Respondents will be institutions of higher education or a consortium of higher education institutions; public or private non-profit consortium of defense industries; and state, local or tribal government organization. The proposal will consist of: (1) Defense Manufacturing Community Designation Concept (slide presentation, 10-slide maximum); (2) Defense Manufacturing Community Designation White Paper (20-page maximum); and (3) Any Necessary Supporting Documentation (25-page maximum). Respondents return the proposal package by uploading electronically on the
The Department of the Navy, Department of Defense (DoD).
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by November 24, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Angela Duncan, 571-372-7574, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Ms. Duncan at
U.S. Department of Education.
Notice of an open meeting.
Notice of this meeting is required by Section 10(a)(2) of the Federal Advisory Committee Act (FACA) and is intended to notify members of the public of an upcoming National Advisory Council on Indian Education (NACIE) open teleconference meeting. Pursuant to 41 CFR 102-3.150, notice for this meeting is given less than 15 calendar days prior to the meeting due to exceptional circumstances. It is imperative that the Council hold the meeting as scheduled to complete the annual report on the activities of the Council for fiscal year 2021, as required under 20 U.S.C. 7471, and to accommodate the scheduling priorities of the members to ensure a quorum will be present.
The NACIE open virtual meeting will be held on November 2, 2021 from 1:00-4:00 p.m. (EDT).
Angela Hernandez, Designated Federal Official, Office of Elementary and Secondary Education (OESE)/Office of Indian Education (OIE), U.S. Department of Education, 400 Maryland Avenue SW, Room 3W113, Washington, DC 20202. Telephone: 202-205-1909, Email:
Statutory Authority and Function: NACIE is authorized by Section 6141 of the Elementary and Secondary Education Act of 1965. NACIE is established within the U.S. Department of Education to advise the Secretary of Education (Secretary) and the Secretary of Interior on the funding and administration (including the development of regulations, and administrative policies and practices) of any program over which the Secretary has jurisdiction and that includes Indian children or adults as participants or that may benefit Indian children or adults, including any program established under Title VI, Part A of the Elementary and Secondary Education Act. In addition, NACIE advises the White House Initiative on American Indian and Alaska Native Education, in accordance with Section 5(a) of Executive Order 13592. NACIE submits to the Congress each year a report on its activities that includes recommendations that are considered appropriate for the improvement of Federal education programs that include Indian children or adults as participants or that may benefit Indian children or adults, and recommendations concerning the funding of any such program.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of a currently approved collection.
Interested persons are invited to submit comments on or before December 27, 2021.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection
The publication of final regulations on September 2, 2020, removed section 668.285(b) regarding Net Present Value in the calculation of the 90/10 ratio and reserved this subparagraph as of the effective date of the regulation, July 1, 2021. With the cancellation of the requirement to calculate the Net Present Value, we are revising the current information collection to estimate the burden for the reporting of the sanction to the Department only.
This request is to revise the currently approved a information collection package, OMB Control Number 1845-0096, to include burden hours based on section 668.28(c) Sanctions. The information collection requirements in the regulations are necessary to determine eligibility to receive program benefits and to prevent fraud and abuse of program funds.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension without change of a currently approved collection.
Interested persons are invited to submit comments on or before December 27, 2021.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Take notice that on October 4, 2021, Gas Transmission Northwest, LLC (GTN), 700 Louisiana Street, Suite 1300, Houston, TX 77002-2700, filed an application under section 7(c) of the Natural Gas Act (NGA), and Part 157 of the Commission's regulations, requesting authorization to construct and operate its GTN XPress Project (Project) located in Kootenai County, Idaho, Walla Walla County, Washington, and Sherman County, Oregon. The proposed project consists of modifications to its existing No. 5 Athol, No. 7 Starbuck, and No. 10 Kent Compressor Stations and installation of various appurtenant and auxiliary facilities. The proposed Project would allow for open access firm transportation service of 150,000 dekatherms per day (Dth/d) of incremental capacity from GTN's Kingsgate Meter Station to its Malin Meter Station, all as more fully set forth in the application, which is on file with the Commission and open for public inspection.
In addition to publishing the full text of this document in the
Any questions regarding the proposed project should be directed to David A. Alonzo, Manager, Project Authorizations, Gas Transmission Northwest, LLC, 700 Louisiana Street, Suite 1300, Houston, Texas, 77002-2700, or by phone at (832) 320-5477, or by email at
Pursuant to Section 157.9 of the Commission's Rules of Practice and Procedure,
There are two ways to become involved in the Commission's review of this project: You can file comments on the project, and you can file a motion to intervene in the proceeding. There is no fee or cost for filing comments or intervening. The deadline for filing a motion to intervene is 5:00 p.m. Eastern Time on November 9, 2021.
Any person wishing to comment on the project may do so. Comments may include statements of support or objections to the project as a whole or specific aspects of the project. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please submit your comments on or before November 9, 2021.
There are three methods you can use to submit your comments to the Commission. In all instances, please reference the Project docket number (CP22-2-000) in your submission.
(1) You may file your comments electronically by using the eComment feature, which is located on the Commission's website at
(2) You may file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the following address below.
The Commission encourages electronic filing of comments (options 1 and 2 above) and has eFiling staff available to assist you at (202) 502-8258 or
Persons who comment on the environmental review of this project will be placed on the Commission's environmental mailing list, and will receive notification when the environmental documents (EA or EIS) are issued for this project and will be notified of meetings associated with the Commission's environmental review process.
The Commission considers all comments received about the project in determining the appropriate action to be taken. However, 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. For instructions on how to intervene, see below.
Any person, which includes individuals, organizations, businesses, municipalities, and other entities,
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
There are two ways to submit your motion to intervene. In both instances, please reference the Project docket number (CP22-2-000) in your submission.
(1) You may file your motion to intervene by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your motion to intervene, along with three copies, by mailing the documents to the address below.
The Commission encourages electronic filing of motions to intervene (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Motions to intervene must be served on the applicant either by mail or email at: 700 Louisiana Street, Suite 1300, Houston, Texas 77002-2700, or at
All timely, unopposed
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
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.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), “Allegations of Significant Adverse Reactions to Human Health or the Environment” (EPA ICR Number 1031.12 and OMB Control Number 2070-0017) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR which is currently approved through October 31, 2021. Public comments were previously requested via the
Additional comments may be submitted on or before November 24, 2021.
Submit your comments to EPA, referencing Docket ID No. EPA-HQ-OPPT-2015-0688, online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Virginia Lee, Data Gathering and Analysis Division (7401M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-4142; email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice.
In accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is issuing a notice of receipt of requests by the registrants to voluntarily cancel their registrations of certain products and to amend certain product registrations to terminate uses. EPA intends to grant these requests at the close of the comment period for this announcement unless the Agency receives substantive comments within the comment period that would merit its further review of the requests, or unless the registrants withdrew their requests. If these requests are granted, any sale, distribution, or use of products listed in this notice will be permitted after the registration has been cancelled and uses terminated only if such sale, distribution, or use is consistent with the terms as described in the final order.
Comments must be received on or before November 24, 2021.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2021-0513, through the Federal eRulemaking Portal at
Submit written withdrawal request by mail to: Registration Division (7502P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001. ATTN: Christopher Green.
Due to the public health concerns related to COVID-19, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit
Christopher Green, Registration Division (7502P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (703) 347-0367; email address:
This action is directed to the public in general and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
1.
2.
This notice announces receipt by EPA of requests from registrants to cancel and terminate certain uses product registrations. The affected products and the registrants making the requests are identified in Table 1, Table 1A, Table 2 and Table 3 of this unit.
Unless a request is withdrawn by the registrant or if the Agency determines that there are substantive comments that warrant further review of this request, EPA intends to issue an order canceling and amending the affected registrations.
The registrant of the registration listed in Table 1A, has requested the date of March 30, 2022, for the effective date of cancellation.
Table 3 of this unit includes the names and addresses of record for the registrants of the products listed in Table 1, Table 1A and Table 2 of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed in Table 1, Table 1A and Table 2 of this unit.
Section 6(f)(1) of FIFRA (7 U.S.C. 136d(f)(1)) provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or amended to terminate one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Section 6(f)(1)(B) of FIFRA (7 U.S.C. 136d(f)(1)(B)) requires that before acting on a request for voluntary cancellation, EPA must provide a 30-day public comment period on the request for voluntary cancellation or use termination. In addition, FIFRA section 6(f)(1)(C) (7 U.S.C. 136d(f)(1)(C)) requires that EPA provide a 180-day comment period on a request for voluntary cancellation or termination of any minor agricultural use before granting the request, unless:
1. The registrants request a waiver of the comment period, or
2. The EPA Administrator determines that continued use of the pesticide would pose an unreasonable adverse effect on the environment.
The registrants have requested that EPA waive the 180-day comment period. Accordingly, EPA will provide a 30-day comment period on the proposed requests.
Registrants who choose to withdraw a request for product cancellation or use termination should submit the withdrawal in writing to the person listed under
Existing stocks are those stocks of registered pesticide products that are currently in the United States and that were packaged, labeled, and released for shipment prior to the effective date of the action. If the requests for voluntary cancellation and amendments to terminate uses are granted, the Agency intends to publish the cancellation order in the
In any order issued in response to these requests for cancellation of product registrations and amendments to terminate uses, EPA proposes to include the following provisions for the treatment of any existing stocks of the products listed in Table 1, Table 1A and Table 2 of Unit II.
For product 100-1431 listed in Table 1A of Unit II, the registrant has requested March 30, 2022, as the effective date of cancellation, registrants will be permitted to sell and distribute existing stocks of voluntarily canceled products for 1 year after the effective date of the cancellation, which will be March 30, 2023. Thereafter, registrants will be prohibited from selling or distributing the product identified in Table 1A of Unit II, except for export consistent with FIFRA section 17 (7 U.S.C. 136o) or for proper disposal.
For all other voluntary product cancellations, listed in Table 1 of Unit II, registrants will be permitted to sell and distribute existing stocks of voluntarily canceled products for 1 year after the effective date of the cancellation, which will be the date of publication of the cancellation order in the
Once EPA has approved product labels reflecting the requested amendments to terminate uses, registrants will be permitted to sell or distribute products under the previously approved labeling for a period of 18 months after the date of
Persons other than the registrant may sell, distribute, or use existing stocks of canceled products & products whose labels include the terminated uses until supplies are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the canceled products & terminated uses.
Environmental Protection Agency (EPA).
Notice.
The Toxic Substances Control Act (TSCA) requires EPA to publish in the
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitters of the PMNs addressed in this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2021-0146, is available at
Due to the public health concerns related to COVID-19, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit
This document lists the statements of findings made by EPA after review of notices submitted under TSCA section 5(a) that certain new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment. This document presents statements of findings made by EPA during the period from August 1, 2021 to August 31, 2021.
TSCA section 5(a)(3) requires EPA to review a TSCA section 5(a) notice and make one of the following specific findings:
• The chemical substance or significant new use presents an unreasonable risk of injury to health or the environment;
• The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the chemical substance or significant new use;
• The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects and the chemical substance or significant new use may present an unreasonable risk of injury to health or the environment;
• The chemical substance is or will be produced in substantial quantities, and such substance either enters or may reasonably be anticipated to enter the environment in substantial quantities or there is or may be significant or substantial human exposure to the substance; or
• The chemical substance or significant new use is not likely to present an unreasonable risk of injury to health or the environment.
Unreasonable risk findings must be made without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant under the conditions of use. The term “conditions of use” is defined in TSCA section 3 to mean “the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”
EPA is required under TSCA section 5(g) to publish in the
Anyone who plans to manufacture (which includes import) a new chemical substance for a non-exempt commercial purpose and any manufacturer or processor wishing to engage in a use of a chemical substance designated by EPA as a significant new use must submit a notice to EPA at least 90 days before commencing manufacture of the new chemical substance or before engaging in the significant new use.
The submitter of a notice to EPA for which EPA has made a finding of “not likely to present an unreasonable risk of injury to health or the environment” may commence manufacture of the chemical substance or manufacture or processing for the significant new use notwithstanding any remaining portion of the applicable review period.
In this unit, EPA provides the following information (to the extent that such information is not claimed as Confidential Business Information (CBI)) on the PMNs, MCANs and SNUNs for which, during this period, EPA has made findings under TSCA section 5(a)(3)(C) that the new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment:
• EPA case number assigned to the TSCA section 5(a) notice.
• Chemical identity (generic name if the specific name is claimed as CBI).
• website link to EPA's decision document describing the basis of the “not likely to present an unreasonable risk” finding made by EPA under TSCA section 5(a)(3)(C).
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Pesticide Environmental Stewardship Program Annual Measures Reporting, (EPA ICR Number 2415.04, OMB Control Number 2070-0188) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through October 31, 2021. Public comments were previously requested via the
Additional comments may be submitted on or before November 24, 2021.
Submit your comments to EPA, referencing Docket ID No. EPA-HQ-OPP-2020-0692, online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Carolyn Siu, Mission Support Division (7101M), Office of Program Support, Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (703) 347-0159; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
PESP members include pesticide end-user and organizations which focus on training, educating, and/or influencing pesticide users. To become a PESP member, an organization submits an application and a five-year strategy outlining how environmental and human health risk reduction goals will be achieved through IPM implementation and/or education. The program encourages PESP members to track progress towards IPM goals such as: reductions in unnecessary use of pesticides, cost reductions, and knowledge shared about IPM methodologies. Entities participating in PESP also benefit from technical assistance, and through incentives for achievements at different levels.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before December 27, 2021. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele, (202) 418-2991.
On September 20, 2021, the Commission published a final rule, ET Docket No. 20-382, FCC 21-72, “Allowing Earlier Equipment Marketing and Importation Opportunities,” 86 FR 52088. Among other adopted rules intended to target enhancements to our marketing and importation rules, the Commission amended the 47 CFR part 2 rules that will allow equipment manufacturers to better gauge consumer interest and prepare for new product launches.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before December 27, 2021. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele, (202) 418-2991.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on the Research Data Center (RDC) Proposal for Access to Confidential Data for the National Center for Health Statistics (NCHS). The proposed collection will be used to assess researcher's requests for access to confidential NCHS data for their research projects.
Written comments must be received on or before December 27, 2021.
You may submit comments, identified by Docket No. CDC-2021-0113 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-H21-8, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected;
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Research Data Center (RDC) Proposal for Access to Confidential Data for the National Center for Health Statistics—Existing Collection in use without an OMB Control Number—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
Section 306(b)(4) of the Public Health Service (PHS) Act (42 U.S.C. 242k(b)(4)), as amended, authorizes that the Secretary of Health and Human Services (DHHS), acting through NCHS, receive requests for providing data and statistics to the public. NCHS receives requests
As part of a comprehensive data dissemination program, the Research Data Center (RDC), National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC), requires prospective researchers who need access to confidential data to complete a research proposal. Researchers self-select whether they need access to confidential data to answer their research questions. The RDC requires the researcher to complete a research proposal so NCHS understands the research proposed, whether confidential data are available to address the research questions, how the confidential data will be used, and what data outputs the researcher needs to satisfy their project. The completed proposal is sent to NCHS for adjudication on whether the proposed research is possible.
To capture the information needed to adjudicate researchers' need for access to confidential NCHS data, CDC requests OMB approval for a total estimated annual burden total of 330 hours (990 hours for a three-year clearance period). The resulting information will be for NCHS internal use. There is no cost to respondents other than their time to complete the proposal.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of meeting and request for comment.
In accordance with the Federal Advisory Committee Act, the CDC announces the following meeting of the Advisory Board on Radiation and Worker Health (ABRWH or the Advisory Board). This meeting is open to the public, limited only by the number of audio conference lines and internet conference accesses available, which is 200 combined. The public is welcome to submit written comments in advance of the meeting, to the contact person below. Written comments received in advance of the meeting will be included in the official record of the meeting. The public is also welcomed to listen to the meeting by joining a teleconference line and/or computer connection (information below).
The meeting will be held on December 8, 2021, from 1:00 p.m. to 6:00 p.m., EST, and December 9, 2021, from 1:00 p.m. to 4:00 p.m., EST. A public comment session will be held on December 8, 2021 at 5:00 p.m., EST, and will conclude at 6:00 p.m., EST, or following the final call for public comment, whichever comes first.
Written comments must be received on or before December 1, 2021.
You may submit comments by mail to: Sherri Diana, National Institute for Occupational Safety and Health, 1090 Tusculum Avenue, MS C-34, Cincinnati, Ohio 45226.
Rashaun Roberts, Ph.D., Designated Federal Officer, NIOSH, CDC, 1090 Tusculum Avenue, Mailstop C-24, Cincinnati, Ohio 45226, Telephone: (513) 533-6800, Toll Free: 1(800) CDC-INFO, Email:
The Advisory Board's charter was issued on August 3, 2001, renewed at appropriate intervals, rechartered on March 22, 2020, and will terminate on March 22, 2022.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA) Dose Reconstruction Interviews and Forms to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on July 12, 2021 to obtain comments from the public and affected agencies. CDC did not receive comments related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570. Comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
EEOICPA Dose Reconstruction Interviews and Forms (OMB Control No. 0920-0530, Exp. 1/31/2022)—Extension—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
On October 30, 2000, the Energy Employees Occupational Illness Compensation Program Act of 2000 (42 U.S.C. 7384-7385) was enacted. This Act established a federal compensation program for employees of the Department of Energy (DOE) and certain of its contractors, subcontractors and vendors, who have suffered cancers and other designated illnesses as a result of exposures sustained in the production and testing of nuclear weapons.
Executive Order 13179, issued on December 7, 2000, delegated authorities assigned to the President under the Act to the Departments of Labor, Health and Human Services, Energy, and Justice. The Department of Health and Human Services (DHHS) was delegated the responsibility of establishing methods for estimating radiation doses received by eligible claimants with cancer applying for compensation. NIOSH is applying the following methods to estimate the radiation doses of individuals applying for compensation.
In performance of its dose reconstruction responsibilities, under the Act, NIOSH is providing voluntary interview opportunities to claimants (or their survivors) individually, and providing them with the opportunity to assist NIOSH in documenting the work history of the employee by characterizing the actual work tasks performed. In addition, NIOSH and the claimant may identify incidents that may have resulted in undocumented radiation exposures, characterizing radiological protection and monitoring practices, and identification of co-workers and other witnesses as may be necessary to confirm undocumented information. In this process, NIOSH uses a computer assisted telephone interview (CATI) system, which allows interviews to be conducted more efficiently and quickly as opposed to a paper-based interview instrument. Both interviews are voluntary and failure to participate in either or both interviews will not have a negative effect on the claim, although voluntary participation may assist the claimant by adding important information that may not be otherwise available.
There are no changes to the questions contained in the package, or the estimated burden hours. NIOSH uses the data collected in this process to complete an individual dose reconstruction that accounts, as fully as possible, for the radiation dose incurred by the employee in the line of duty for DOE nuclear weapons production programs. After dose reconstruction, NIOSH also performs a brief, voluntary final interview with the claimant to explain the results and to allow the claimant to confirm or question the records NIOSH has compiled. This will also be the final opportunity for the claimant to supplement the dose reconstruction record.
At the conclusion of the dose reconstruction process, the claimant submits a form to confirm that there is no further information to provide to NIOSH about the claim at this time. The form notifies the claimant that signing the form allows NIOSH to forward a dose reconstruction report to DOL and to the claimant, and closes the record on
Total annualized burden is estimated to be 3900 hours. There is no cost to respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled “Maritime Illness Database and Reporting System (MIDRS).” The purpose of this data collection is to provide U.S.-bound passenger vessel operators an electronic reporting system to assist with their legal requirement to notify CDC of the number of passengers and crew members onboard their ship who have reportable acute gastroenteritis (AGE) as defined by federal quarantine regulations.
CDC must receive written comments on or before December 27, 2021.
You may submit comments, identified by Docket No. CDC-2021-0114 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; phone: 404-639-7118; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected;
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Maritime Illness Database and Reporting System (MIDRS) (OMB Control No. 0920-1260, Exp. 04/30/2022)—Extension—National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
The purpose of this Extension Information Collection Request (ICR) is to request a three-year Paperwork Reduction Act (PRA) clearance for CDC's Maritime Illness Database and Reporting System (MIDRS) surveillance system.
Operationally, CDC has divided the responsibilities for enforcing foreign quarantine regulations between the Vessel Sanitation Program (VSP) and the Division of Global Migration and Quarantine (DGMQ). VSP takes the lead on overseeing acute gastroenteritis (AGE) illness surveillance and outbreak investigation activities on passenger ships using MIDRS, while DGMQ monitors all non-AGE illnesses and
The MIDRS data collection system consists of a surveillance system that receives information electronically through a web-based reporting portal; data can also be submitted by phone, email, or fax, and entered into MIDRS by VSP. AGE cases reported to MIDRS are totals for the entire voyage and do not represent the number of active AGE cases at any given port of call or at disembarkation. The AGE log, 72-hour food/activity history and other required documentation are completed and maintained on the ship.
Data collected will allow VSP to quickly detect AGE outbreaks, provide epidemiologic and sanitation guidance to stop the outbreak, craft public health recommendations to prevent future outbreaks, and monitor AGE illness trends to identify important changes over time.
There are two types of respondents for this data collection: Cruise ship medical staff or other designated personnel who report AGE cases, and AGE cases who provide information for the 72-hour food/activity histories. Of note, VSP will not receive any information from or about the AGE cases; this information is collected and owned by the cruise line and maintained on the ship as part of the AGE case's medical record. VSP reviews these records during operational inspections to confirm they are available if needed, and if there is an AGE outbreak or report of unusual AGE illness for a particular voyage.
The total annualized time burden requested is 1,537 burden hours. A summary of the estimated annualized burden hours is shown in the table below. There are no costs to respondents other than their time.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice announces a $631.00 calendar year (CY) 2022 application fee for institutional providers that are initially enrolling in the Medicare or Medicaid program or the Children's Health Insurance Program (CHIP); revalidating their Medicare, Medicaid, or CHIP enrollment; or adding a new Medicare practice location. This fee is required with any enrollment application submitted on or after January 1, 2022 and on or before December 31, 2022.
The application fee announced in this notice is effective on January 1, 2022.
Frank Whelan, (410) 786-1302.
In the February 2, 2011
As indicated in § 424.514 and § 455.460, the application fee is not required for either of the following:
• A Medicare physician or non-physician practitioner submitting a CMS-855I.
• A prospective or revalidating Medicaid or CHIP provider—
++ Who is an individual physician or non-physician practitioner; or
++ That is enrolled as an institutional provider in Title XVIII of the Act or another state's Title XIX or XXI plan and has paid the application fee to a Medicare contractor or another state.
Section 1866(j)(2)(C)(i)(I) of the Act established a $500 application fee for institutional providers in calendar year (CY) 2010. Consistent with section 1866(j)(2)(C)(i)(II) of the Act, § 424.514(d)(2) states that for CY 2011 and subsequent years, the preceding year's fee will be adjusted by the percentage change in the consumer price index (CPI) for all urban consumers (all items; United States city average, CPI-U) for the 12-month period ending on June 30 of the previous year. Each year since 2011, accordingly, we have published in the
According to Bureau of Labor Statistics (BLS) data, the CPU-U increase for the period of July 1, 2020 through June 30, 2021 was 5.4 percent. As required by § 424.514(d)(2), the preceding year's fee of $599 will be adjusted by 5.4 percent. This results in a CY 2022 application fee amount of $631.35 ($599 × 1.054). As we must round this to the nearest whole dollar amount, the resultant application fee amount for CY 2022 is $631.00.
This document does not impose information collection requirements, that is, reporting, recordkeeping, or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995. However, it does reference previously approved information collections. The Forms CMS-855A, CMS-855B, and CMS-855I are approved under OMB control number 0938-0685; the Form CMS-855S is approved under OMB control number 0938-1056.
We have examined the impact of this notice as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 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, distributive impacts, and equity. A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). As explained in this section of the notice, we estimate that the total cost of the increase in the application fee will not exceed $100 million. Therefore, this notice does not reach the $100 million
The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $7.5 million to $38.5 million in any 1 year. Individuals and states are not included in the definition of a small entity. As we stated in the RIA for the February 2, 2011 final rule with comment period (76 FR 5952), we do not believe that the application fee will have a significant impact on small entities.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined, and the Secretary certifies, that this notice would not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2021, that threshold was approximately $158 million. The Agency has determined that there will be minimal impact from the costs of this notice, as the threshold is not met under the UMRA.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has federalism implications. Since this notice does not impose substantial direct costs on state or local governments, the requirements of Executive Order 13132 are not applicable.
The costs associated with this notice involve the increase in the application fee amount that certain providers and suppliers must pay in CY 2022. The CY 2022 cost estimates are as follows:
Based on CMS data, we estimate that in CY 2022 approximately—
• 10,214 newly enrolling institutional providers will be subject to and pay an application fee; and
• 42,117 revalidating institutional providers will be subject to and pay an application fee.
Using a figure of 52,331 (10,214 newly enrolling + 42,117 revalidating) institutional providers, we estimate an increase in the cost of the Medicare application fee requirement in CY 2022 of $1,674,592 (or 52,331 × $32 (or $631 minus $599)) from our CY 2021 projections.
Based on CMS and state statistics, we estimate that approximately 30,000 (9,000 newly enrolling + 21,000 revalidating) Medicaid and CHIP institutional providers will be subject to an application fee in CY 2022. Using this figure, we project an increase in the cost of the Medicaid and CHIP application fee requirement in CY 2022 of $960,000 (or 30,000 × $32 (or $631 minus $599)) from our CY 2021 projections.
Based on the foregoing, we estimate the total increase in the cost of the application fee requirement for Medicare, Medicaid, and CHIP providers and suppliers in CY 2022 to be $2,634,592 ($1,674,592 + $960,000) from our CY 2021 projections.
In accordance with the provisions of Executive Order 12866, this notice was reviewed by the Office of Management and Budget.
The Administrator of the Centers for Medicare & Medicaid Services (CMS), Chiquita Brooks-LaSure, having reviewed and approved this document, authorizes Lynette Wilson, who is the Federal Register Liaison, to electronically sign this document for purposes of publication in the
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 materials, 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(a) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Interagency Pain Research Coordinating Committee.
The meeting will be open to the public. Individuals who plan to participate and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
The meeting will be open to the public via NIH Videocast
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.
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer at (240) 276-0361.
The Substance Abuse and Mental Health Services Administration (SAMHSA), Center for Substance Abuse Prevention (CSAP) is requesting from the Office of Management and Budget (OMB) approval for the revised Minority AIDS Initiative (MAI) monitoring tools, which includes both youth and adult questionnaires as well as the quarterly progress report. This renewal includes the inclusion of new cohorts.
The cohorts of grantees funded by the MAI and included in this clearance request are:
The target population for the MAI grantees will be at-risk minority adolescents and young adults. All MAI grantees are expected to report their monitoring data using SAMHSA's Strategic Prevention Framework (SPF) to target minority populations, as well as other high-risk groups residing in communities of color with high prevalence of Substance Abuse and HIV/AIDS. The primary objectives of the monitoring tools include:
• Assess the success of the MAI in reducing risk factors and increasing protective factors associated with the transmission of the Human Immunodeficiency Virus (HIV), Hepatitis C Virus (HCV), and other sexually transmitted diseases (STD).
• Measure the effectiveness of evidence-based programs and infrastructure development activities such as: Outreach and training, mobilization of key stakeholders, substance abuse and HIV/AIDS counseling and education, testing, referrals to appropriate medical treatment and/or other intervention strategies (
• Investigate intervention types and features that yield the best outcomes for specific population groups.
• Assess the extent to which access to health care was enhanced for population groups and individuals vulnerable to behavioral health disparities residing in communities targeted by funded interventions.
• Assess the process of adopting and implementing the SPF with the target populations.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Federal Emergency Management Agency, Department of Homeland Security.
Announcement of meetings.
The Federal Emergency Management Agency (FEMA) is holding a series of meetings to implement the Voluntary Agreement for the Manufacture and Distribution of Critical Healthcare Resources Necessary to Respond to a Pandemic.
The first meeting took place on Tuesday, October 12, 2021, from 10:00 a.m. to 12 p.m. Eastern Time (ET). The second meeting took place on Thursday, October 14, 2021, from 10:30 a.m. to 11 a.m. ET. The third meeting took place on Thursday, October 21, 2021, from 10:30 a.m. to 11 a.m. ET. The fourth meeting will take place on Thursday, October 28, 2021, from 10:30 a.m. to 11 a.m. ET. The fifth meeting will take place on Thursday, November 4, 2021, from 10:30 a.m. to 11 a.m. ET.
Robert Glenn, Office of Business, Industry, Infrastructure Integration, via email at
Notice of these meetings is provided as required by section 708(h)(8) of the Defense Production Act (DPA), 50 U.S.C. 4558(h)(8), and consistent with 44 CFR part 332.
The DPA authorizes the making of “voluntary agreements and plans of action” with representatives of industry, business, and other interests to help provide for the national defense.
On August 17, 2020, after the appropriate consultations with the Attorney General and the Chairman of the Federal Trade Commission, FEMA completed and published in the
On December 7, 2020, the first plan of action under the Voluntary Agreement—the Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Personal Protective Equipment (PPE) to Respond to COVID-19 (PPE Plan of Action)—was finalized.
On May 24, 2021, four additional plans of action under the Voluntary Agreement—the Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Diagnostic Test Kits and other Testing Components to respond to COVID-19, the Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Drug Products, Drug Substances, and Associated Medical Devices to respond to COVID-19, the Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Medical Devices to respond to COVID-19, and the Plan of Action to Establish a National Strategy for the Manufacture, Allocation, and Distribution of Medical Gases to respond to COVID-19—were finalized.
The meetings were chaired by the FEMA Administrator's delegates from the Office of Response and Recovery (ORR) and Office of Policy and Program Analysis (OPPA), attended by the Attorney General's delegates from the U.S. Department of Justice, and attended by the Chairman of the Federal Trade Commission's delegates. In implementing the Voluntary Agreement, FEMA adheres to all procedural requirements of 50 U.S.C. 4558 and 44 CFR part 332.
1. Meet the Sub-Committee for Oxygen under the Medical Gases Plan of Action to establish priorities related to the COVID-19 response under the Voluntary Agreement.
2. Gather Sub-Committee Participants and Attendees to ask targeted questions for situational awareness related to the Sub-Committee for Oxygen.
3. Identify potential Objectives and Actions that should be completed under the Sub-Committee for Oxygen.
4. Identify pandemic-related information gaps and areas that merit sharing by holding recurring meetings of the Sub-Committee for Oxygen with key stakeholders.
The Sponsor of the Voluntary Agreement, the FEMA Administrator, found that these meetings to implement the Voluntary Agreement involved matters which fall within the purview of matters described in 5 U.S.C. 552b(c) and the meetings are therefore closed to the public.
Specifically, these meetings may require participants to disclose trade secrets or commercial or financial information that is privileged or confidential. Disclosure of such information allows for meetings to be closed to the public pursuant to 5 U.S.C. 552b(c)(4).
The success of the Voluntary Agreement depends wholly on the willing participation of the private sector participants. Failure to close these meetings to the public could reduce active participation by the signatories due to a perceived risk that sensitive company information could be prematurely released to the public. A premature public disclosure of a private sector participant's information could reduce trust and support for the Voluntary Agreement.
A resulting loss of support by the participants for the Voluntary Agreement would significantly frustrate the implementation of the Agency's objectives. Thus, these meeting closures are permitted pursuant to 5 U.S.C. 552b(c)(9)(B).
Department of Homeland Security (DHS).
30-Day notice and request for comments; Office of the Immigration Detention Ombudsman Intake Form, 1601-0030, extension without change.
The Department of Homeland Security, will submit the following Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted until November 24, 2021. This process is conducted in accordance with 5 CFR 1320.1.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The Department of Homeland Security's (DHS) Office of the Immigration Detention Ombudsman (OIDO) is an independent office tasked with resolving individual complaints from or about individuals in immigration detention regarding the potential violation of immigration detention standards or other potential misconduct. OIDO was established by Congress (Sec. 106 of the Consolidated Appropriations Act, 2020, Pub. L. 116-93). Its intake form is intended for use by individuals wishing to submit a complaint to OIDO. Information collected will provide the office with details about the allegations the submitter seeks to have OIDO address.
The information collected on this form will allow OIDO to identify: (1) The individual submitting the complaint and their contact information; (2) the detained individual who is the subject of the complaint; (3) the government-owned or contracted facility where the individual is or was detained and for how long; and (4) relevant details about the complaint. All of this information will be used by OIDO to investigate, resolve, and if appropriate, provide redress.
The use of this form is the most efficient means for collecting and processing the required data. Initially, collection will be via a paper form, which may be obtained from OIDO staff conducting routine visits in detention facilities. The form will also be available for download from the OIDO website. The PDF form will be able to be completed online, printed out, and submitted to OIDO by email, mail, or fax, or handed to a staff member in a detention facility.
After approval of the form described in this supporting statement, an electronic version will be developed so that submitters may complete and file via the OIDO website. The paper version will continue to be available; it will be noted on the form that using the paper method may result in processing delays for OIDO to complete data entry.
This information collection does not have an impact on small businesses or other small entities.
If this information is not collected, OIDO will not be able to accomplish its Congressional mandate to provide assistance to individuals who may be affected by misconduct, excessive force, or other violations of law or detention standards.
The assurance of confidentiality provided to the respondents for this information collection is based on the forthcoming Privacy Impact Assessment for the Immigration Detention Ombudsman Case Management System (ID-CMS) (June 21,2021). Additionally, the information collected is covered by DHS/ALL-020 Department of Homeland Security Internal Affairs, April 28, 2014, 79 FR 23361 and DHS/ALL-025 Law Enforcement Authority in Support of the Protection of Property Owned, Occupied, or Secured by the Department of Homeland Security System of Records, June 14, 2017, 82 FR 27274.
This information collection was constructed in compliance with regulations and authorities under the purview of the DHS Privacy Office, DHS OCIO, DHS Records Management, and OMB regulations regarding data collection, use, sharing, storage, information security, and retrieval of information.
There are no changes to the information being collected and there is no change to the estimated burden associated with this collection.
The Office of Management and Budget is particularly interested in comments which:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Katina Washington, Program Analyst, Multifamily Housing Programs, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email:
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Fish and Wildlife Service (Service), are proposing to renew an information collection.
Interested persons are invited to submit comments on or before December 27, 2021.
Send your comments on the information collection request (ICR) by one of the following methods:
•
•
•
To request additional information about this ICR, contact Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act (PRA, 44 U.S.C. 3501
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
• Obtain approval by the U.S. Internal Revenue Service (IRS) as a corporation that is exempt from taxation under section 501(a) of the IRS Code of 1986 (Pub. L. 99-514), which is described in sections 501(c)(3) and 170(b)(1)(A)(vi) of that code.
• Do not engage in commercial trade in the prohibited wildlife species, including offspring, parts, and products.
• Do not propagate the prohibited wildlife species.
• Have no direct contact between the public and the prohibited wildlife species.
The basis for this information collection is the recordkeeping requirement that we place on accredited wildlife sanctuaries. We require accredited wildlife sanctuaries to maintain complete and accurate records of any possession, transportation, acquisition, disposition, importation, or exportation of the prohibited wildlife species as defined in the CWSA (see title 50 of the Code of Federal Regulations (CFR) at part 14, subpart K). Records must be up to date and include: (1) Names and addresses of persons to or from whom any prohibited wildlife species has been acquired, imported, exported, purchased, sold, or otherwise transferred; and (2) dates of these transactions. Accredited wildlife sanctuaries must:
• Maintain these records for 5 years.
• Make these records accessible to Service officials for inspection at reasonable hours.
• Copy these records for Service officials, if requested.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (Service), have received an application for an incidental take permit to take the federally listed Delhi Sands flower-loving fly under the Endangered Species Act (ESA). The permit application includes a proposed low-effect habitat conservation plan (HCP). In accordance with the requirements of the National Environmental Policy Act (NEPA), we have prepared a draft low-effect screening form supporting our preliminary determination that the proposed action qualifies as a categorical exclusion under NEPA. We invite comments from the public and Federal, Tribal, State, and local governments on the permit application, proposed low-effect HCP, and draft NEPA compliance documentation.
To ensure consideration, please send your written comments on or before November 24, 2021.
•
•
We request that you send comments by only one of the methods described above.
Ms. Karin Cleary-Rose, Division Supervisor, Carlsbad Fish and Wildlife Office, 760-322-2070. If you use a telecommunications device for the deaf (TDD), please call the Federal Relay Service (FRS) at 800-877-8339.
We, the U.S. Fish and Wildlife Service, received an application from Rialto Project Owner, Marshall P. Wilkinson (applicant), for an incidental take permit under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
The proposed project will impact an estimated 0.67 acres of habitat occupied by Delhi Sands flower-loving fly. We are requesting comments on the permit application and on our preliminary determination that the proposed HCP qualifies as a low-effect HCP, eligible for a categorical exclusion under the National Environmental Policy Act of 1969, as amended (NEPA; 42 U.S.C. 4321
The project area is located on a 4-acre site in the City of Rialto in San Bernardino County, California. The applicant requests a 5-year incidental take permit for permanent impacts to 0.67 acres of occupied Delhi Sands flower-loving fly habitat. The applicant proposes to mitigate impacts through the conservation of 1 acre of occupied Delhi Sands flower-loving fly habitat off site at the Colton Dune Conservation Bank in San Bernardino County, or other Service-approved entity. The off-site mitigation area provides higher quality habitat than that found on the project site and will be conserved, managed, and monitored in perpetuity.
The Service has made a preliminary determination that the project, including grading, paving, and the proposed mitigation, would individually and cumulatively have a minor or negligible effect on the Delhi Sands flower-loving fly and the human environment. Therefore, we have preliminarily concluded that the incidental take permit for this project would qualify for categorical exclusion, and that the HCP is low effect under our NEPA regulations at 43 CFR 46.205 and 46.210.
A low-effect HCP is one that would result in:
• Minor or negligible effects on federally listed, proposed, and candidate species and their habitats;
• Minor or negligible effects on other environmental values or resources; and
• Impacts that, when considered together with the impacts of other past, present, and reasonably foreseeable similarly situated projects, would not over time result in significant cumulative effects to environmental values or resources.
We will evaluate the proposed HCP and any comments received to determine whether to issue the requested permit. We will also conduct an intra-Service consultation pursuant to section 7 of the ESA to evaluate the effects of the proposed take. After considering the above findings, we will determine whether the permit issuance criteria of section 10(a)(1)(B) of the ESA have been met. If met, we will issue the permit to the applicant for incidental take of the Delhi Sands flower-loving fly.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We provide this notice under section 10(c) (16 U.S.C. 1539
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, Stipulation, and Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in
Copies of the Complaint, proposed Final Judgment, and Competitive Impact Statement are available for inspection on the Antitrust Division's website at
Public comment is invited within 60 days of the date of this notice. Such comments, including the name of the submitter, and responses thereto, will be posted on the Antitrust Division's website, filed with the Court, and, under certain circumstances, published in the
The United States of America (“United States”), acting under the direction of the Attorney General of the United States, brings this civil antitrust action against Defendants Wienerberger AG, its North American subsidiary General Shale Brick, Inc. (“General Shale”), Meridian Brick LLC (“Meridian”), and Meridian's parent companies Boral Limited and LSF9 Stardust Super Holdings, L.P. to enjoin General Shale's proposed acquisition of Meridian. The United States alleges as follows:
1. General Shale's proposed acquisition of its rival, Meridian, would combine two of the largest residential brick manufacturers in numerous markets across the midwestern and southern United States. General Shale and Meridian compete daily to supply a variety of residential brick to customers ranging from local homebuilders to national construction companies. As a result of the transaction, homebuilders of all types likely will pay higher prices, face reduced innovation, and receive lower quality products for their residential brick supply.
2. In numerous markets across the United States, General Shale and Meridian are the two most significant suppliers of residential brick or two of only a few such suppliers. Homebuilders, particularly in certain areas of Alabama, Indiana, Kentucky, Michigan, Ohio, and Tennessee depend on competition between General Shale and Meridian to ensure a supply of quality brick at competitive prices.
3. Not only has competition between General Shale and Meridian driven residential brick prices down, it has also fostered product innovation that has resulted in new products and the broad portfolio that each firm offers today. For example, competition between these firms has resulted in the introduction of new color mixes, textures, and facing styles, as well as more efficient and environmentally sustainable production processes.
4. By eliminating competition between General Shale and Meridian, the proposed acquisition would result in higher prices, reduced innovation, and lower quality in the markets for the design, manufacture, and sale of residential brick. Accordingly, General Shale's acquisition of Meridian would violate Section 7 of the Clayton Act, 15 U.S.C. 18, and therefore should be enjoined.
5. General Shale is a Delaware corporation headquartered in Johnson City, Tennessee. It is a leading U.S. producer of building material solutions and one of North America's largest brick, stone, and concrete block manufacturers. General Shale operates 11 production facilities in 10 states and provinces. It also has a network of 21 sales locations and more than 200 affiliated distributors in North America.
6. Wienerberger AG, an Austrian corporation, is General Shale's parent company. Based in Vienna, Austria, it is one of the world's largest building materials manufacturers. Wienerberger AG operates manufacturing and distribution facilities for brick and other construction materials in three continents, including in North America through General Shale. In 2020, Wienerberger AG's North American business generated revenues of approximately $370 million, 78% of which was derived from brick sales, including residential brick sales.
7. Meridian is a Delaware limited liability company. Headquartered in Alpharetta, Georgia, Meridian manufactures and sells construction materials, including commercial and residential brick and masonry materials. Meridian is the largest brick supplier in the United States. During fiscal year 2020, it generated revenues of over $400 million, which primarily came from brick sales, including residential brick sales. Meridian and its sister company Meridian Brick Canada Ltd. make up the Meridian Group, which operates 20 manufacturing facilities and 27 distribution centers throughout North America. The Meridian Group is directly and indirectly owned by Boral Limited (“Boral”) and LSF9 Stardust Super Holdings, L.P. Boral is an Australian public company that produces and supplies building and construction materials primarily in North America and Australia. Boral and LSF9 Stardust Super Holdings, L.P. formed Meridian as a joint venture in 2016.
8. On December 18, 2020, General Shale announced its intention to acquire Meridian from Boral and LSF9 Stardust Super Holdings, L.P. as part of a total transaction valued at approximately $250 million.
9. The United States brings this action under Section 15 of the Clayton Act, 15 U.S.C. 25, as amended, to prevent and restrain Defendants from violating Section 7 of the Clayton Act, 15 U.S.C. 18.
10. Defendants' activities substantially affect interstate commerce. They manufacture and sell residential brick directly to customers and through third-party distributors throughout the southern and midwestern United States. This Court has subject matter jurisdiction over this action pursuant to Section 15 of the Clayton Act, 15 U.S.C. 25, and 28 U.S.C. 1331, 1337(a), and 1345.
11. Defendants have consented to venue and personal jurisdiction in this judicial district. Venue is proper in this district under Section 12 of the Clayton Act, 15 U.S.C. 22, and under 28 U.S.C. 1391(b)(3) and (c)(2) for Meridian and
12. Residential brick is a type of exterior cladding that is used to protect homes and other buildings from weather and the elements. It comes in various sizes and colors and is primarily comprised of shale or red clay that has been fired in a kiln. Residential brick of each color and size is manufactured in a substantially similar process, with minor adjustments in the amount of clay or type of color additives used to make a particular brick model. Indeed, although residential brick comes in varying sizes (
13. Residential brick is distinct from commercial brick. Residential brick is less expensive than commercial brick due to different manufacturing processes. In particular, commercial brick is made by a process called through-body extrusion. Through-body extrusion entails a rigorous coloring process that ensures uniform coloring throughout the body of the brick. This achieves the higher color quality required of commercial brick. By contrast, residential brick is often colored only on the outer portion of the brick, and the residential brick manufacturing process requires fewer additives and other costly inputs.
14. Residential brick must meet standard specifications for residential use that are set by the American Society for Testing and Materials (“ASTM”). These standards require certain durability and load capabilities that differentiate residential brick from decorative paving brick as well as “thin” brick, which is a fraction of the thickness of residential brick and has lower structural requirements because it is ornamental.
15. Residential brick is distinct from other types of exterior cladding. It has both performance characteristics (such as durability and structural integrity) and aesthetic traits that distinguish it from products such as siding and other exterior claddings. Customers who prefer the look of residential brick, or whose projects require the unique properties of residential brick, cannot reasonably turn to alternative exterior cladding solutions.
16. Because of these unique characteristics, substitution away from residential brick in the event of a small but significant increase in price by a hypothetical monopolist of residential brick would be insufficient to make such a price increase unprofitable. Accordingly, residential brick is a line of commerce, or relevant product market, for purposes of analyzing the effects of the proposed acquisition under Section 7 of the Clayton Act.
17. Residential brick is generally transported by truck. Transportation costs can be substantial and typically range from 15% to 30% of the total price of residential brick. As a result, the geographic markets for residential brick tend to be local, with the specific geographic boundaries of any local market also determined by road infrastructure, traffic conditions, and natural conditions, such as mountain ranges that impose significantly higher fuel costs on the transportation of residential brick to customers in local markets.
18. The transaction would likely harm competition for residential brick in the following Metropolitan Statistical Areas (“MSAs”)
19. In each of these relevant markets, a small but significant increase in price by a hypothetical monopolist of residential brick would not be defeated by substitution to commercial brick or other claddings, other construction materials, or by arbitrage—
20. The proposed transaction would significantly increase concentration in the relevant markets and harm consumers by eliminating the substantial head-to-head competition that currently exists between General Shale and Meridian.
21. For each relevant market, General Shale and Meridian are among the top suppliers of residential brick by volume sold and have a competitive advantage because of the proximity of their manufacturing facilities to customers in each relevant market. Further, only two or three significant competitors, including General Shale and Meridian, supply each relevant market. Other residential brick suppliers face significantly higher transportation costs to serve these markets and thus have limited competitive significance. Competition between General Shale and Meridian has also spurred product innovation that has yielded higher quality and a variety of innovative residential brick products, including new colors, textures, and facing styles.
22. Homebuilders and other customers in the relevant markets thus rely on competition between General Shale and Meridian to supply a variety of quality residential brick at competitive prices. By eliminating this competition, the proposed transaction would likely lead to higher prices and reduced investment in innovation and quality.
23. In 2020, Tennessee was the second-largest brick consuming state in the United States. General Shale and Meridian supplied approximately 54% of the total brick volume sold in Tennessee in 2020. General Shale and Meridian are particularly important suppliers for the Nashville MSA, where they are the top two suppliers of residential brick by volume and face only each other as significant competitors. General Shale and Meridian are the only significant suppliers of residential brick that operate brick manufacturing facilities located within 150 miles of Nashville, and no other significant supplier has a manufacturing facility located within 200 miles.
24. General Shale and Meridian are also important suppliers of residential brick for the Memphis MSA, where they face only one other significant competitor. These three firms are the only significant suppliers that operate brick manufacturing facilities within
25. Alabama consumed the fifth most bricks of any state in the nation in 2020. General Shale and Meridian are two of the top three residential brick suppliers in Alabama and combined supplied over 43% of the total brick volume sold in Alabama in 2020. General Shale and Meridian are particularly important suppliers for the Huntsville MSA, where they are two of the top three residential brick suppliers by volume and face only one other significant competitor. These three firms are the only significant suppliers that operate a residential brick manufacturing facility located within 125 miles of Huntsville.
26. General Shale and Meridian supplied over 50% of the total brick volume sold in Kentucky in 2020. General Shale and Meridian are particularly important suppliers for the Lexington MSA, where they are the two largest suppliers of residential brick by volume and face only each other as significant competitors. General Shale and Meridian are the only significant residential brick suppliers located within 50 miles of Lexington; the next closest residential brick manufacturer is over 230 miles away.
27. General Shale and Meridian are also important residential brick suppliers for the Louisville MSA. In the Louisville MSA, the proposed acquisition would reduce the number of significant competitors for residential brick from three to two, as the merging parties own two of the three brick manufacturing facilities located within 200 miles of Louisville. Following the transaction, the third-closest significant residential brick manufacturer would be located over 300 miles away.
28. General Shale and Meridian are the top two suppliers of residential brick to customers in Indiana. In 2020, they combined to supply over 45% of the total brick volume sold in the state. General Shale and Meridian are particularly important suppliers of residential brick for the Indianapolis MSA, where they face only one other significant competitor. These three firms are the only significant suppliers that operate a residential brick manufacturing facility located within 100 miles of Indianapolis, with the next closest competitor located almost 350 miles away.
29. General Shale and Meridian are the first and third largest suppliers of brick to customers in Michigan. In 2020, General Shale and Meridian supplied 45% of the total brick volume sold in the state. General Shale and Meridian are particularly important suppliers for the Detroit MSA, where they are the top two competitors for residential brick by volume. In this market, the proposed acquisition would reduce the number of significant suppliers for residential brick from three to two with these three firms being the only significant suppliers that operate residential brick manufacturing facilities within 375 miles of Detroit.
30. General Shale and Meridian are the top two residential brick suppliers to customers in Ohio. In 2020, General Shale and Meridian supplied 28% of the total brick volume sold in the state. General Shale and Meridian are particularly important suppliers for the Cincinnati MSA, where they are the top two competitors for residential brick by volume and face only one other significant supplier. These three firms are the only significant suppliers with residential brick manufacturing facilities located within 200 miles of Cincinnati, and no other significant manufacturer has a facility within 350 miles.
31. Entry into the relevant markets would be costly and time-consuming and is unlikely to prevent the harm to competition that is likely to result from the proposed transaction. The time and expense required to construct manufacturing facilities, acquire necessary equipment, develop product formulas, and overcome regulatory obstacles, such as obtaining building and usage permits and ensuring environmental and workplace safety compliance, would take years of planning and significant financial investment.
32. Additionally, repositioning by a commercial brick manufacturer is unlikely to mitigate the harm that would result from the proposed transaction. Switching from producing commercial brick to producing residential brick would come at a significant opportunity cost as commercial brick sales generally yield a higher profit margin than residential brick. Accordingly, it is unlikely that a manufacturer of commercial brick would be incentivized to switch to supplying residential brick.
33. General Shale's proposed acquisition of Meridian is likely to substantially lessen competition in each of the relevant markets for the design, manufacture, and sale of residential brick set forth above in violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
34. Unless enjoined, the acquisition likely would have the following anticompetitive effects, among others, in the relevant markets:
(a) Actual and potential competition between General Shale and Meridian would be eliminated;
(b) competition generally would be substantially lessened; and
(c) prices for the relevant products would likely increase, and innovation and the quality of those products likely would decline.
35. The United States request that this Court:
(a) Adjudge and decree General Shale's proposed acquisition of Meridian to be unlawful and in violation of Section 7 of the Clayton Act, 15 U.S.C. 18;
(b) preliminarily and permanently enjoin Defendants and all persons acting on their behalf from consummating the proposed acquisition by General Shale of Meridian or from entering into or carrying out any other contract, agreement, plan, or understanding, the effect of which would be to combine Meridian with the operations of General Shale;
(c) award the United States the costs for this action; and
(d) grant the United States such other relief as the Court deems just and proper.
Dated: October 1, 2021.
Respectfully Submitted,
The Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief may be granted against Defendants under Section 7 of the Clayton Act (15 U.S.C. 18).
As used in this Final Judgment:
A. “Boral” means Defendant Boral Limited, an Australian public company with its headquarters in North Sydney, Australia, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
B. “General Shale” means Defendant General Shale Brick, Inc, a subsidiary of Wienerberger and a Delaware corporation with its headquarters in Johnson City, Tennessee, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
C. “Meridian” means Defendant Meridian Brick LLC, a joint venture between Boral and LSF9 and a Delaware limited liability company with its headquarters in Alpharetta, Georgia, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
D. “LSF9” means Defendant LSF9 Stardust Super Holdings, L.P., a Bermuda limited partnership with its principal place of business in Hamilton, Bermuda, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
E. “Wienerberger” means Wienerberger AG, an Austrian corporation with its headquarters in Wien, Austria, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
F. “RemSom” means RemSom LLC, a South Carolina limited liability company with its headquarters in Columbia, South Carolina, its successors and assigns, and its subsidiaries (including US Brick, LLC), divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
G. “Acquirer” means RemSom or another entity approved by the United States in its sole discretion to which Defendants divest the Divestiture Assets.
H. “Divestiture Assets” means all of Defendants' rights, titles, and interests in and to:
1. The manufacturing facilities and mines listed in Appendix A;
2. the distribution yards and stores listed in Appendix B;
3. all property and assets, tangible and intangible, wherever located, relating to or used in connection with the manufacturing facilities and mines listed in Appendix A or the distribution yard and stores listed in Appendix B, including:
a. All other real property, including fee simple interests, real property leasehold interests and renewal rights thereto, improvements to real property, and options to purchase any adjoining or other property, together with all buildings, facilities, and other structures;
b. all tangible personal property, including fixed assets, machinery and manufacturing equipment, tools, vehicles, inventory, materials, office equipment and furniture, computer hardware, and supplies;
c. all contracts, contractual rights, and customer and distributor relationships, and all other agreements, commitments, and understandings, including supply agreements, teaming agreements, leases, and all outstanding offers or solicitations to enter into a similar arrangement;
d. all licenses, permits, certifications, approvals, consents, registrations, waivers, and authorizations issued or granted by any governmental organization, and all pending applications or renewals;
e. all records and data, including (a) customer and distributor lists, accounts, sales, and credits records, (b) production, repair, maintenance, and performance records, (c) manuals and technical information Defendants provide to their own employees, customers, distributors, suppliers, agents, or licensees, (d) records and research data concerning historic and current research and development activities, including designs of experiments and the results of successful and unsuccessful designs and experiments, and (e) drawings, blueprints, and designs;
f. all intellectual property owned, licensed, or sublicensed, either as licensor or licensee, including (a) patents, patent applications, and inventions and discoveries that may be patentable, (b) registered and unregistered copyrights and copyright applications, and (c) registered and unregistered trademarks, trade dress, service marks, trade names, and trademark applications; and
g. all other intangible property, including (a) commercial names and d/b/a names, (b) technical information, (c) computer software and related documentation, know-how, trade secrets, design protocols, specifications for materials, specifications for parts, specifications for devices, safety procedures (
I. “Divestiture Date” means the date on which the Divestiture Assets are divested to Acquirer pursuant to this Final Judgment.
J. “Including” means including, but not limited to.
K. “Relevant Personnel” means all full-time, part-time, or contract employees of General Shale or Meridian, located at one of the facilities, mines, yards, or stores included in the Divestiture Assets at any time between January 1, 2019, and the Divestiture Date.
L. “Transaction” means the proposed acquisition of Meridian by General Shale.
A. This Final Judgment applies to Boral, General Shale, Meridian, LSF9, and Wienerberger, as defined above, and all other persons in active concert or participation with any Defendant who receive actual notice of this Final Judgment.
B. If, prior to complying with Section IV and Section V of this Final Judgment, Defendants sell or otherwise dispose of all or substantially all of their assets or of business units that include the Divestiture Assets, Defendants must require any purchaser to be bound by the provisions of this Final Judgment. Defendants need not obtain such an agreement from Acquirer.
A. Defendants Wienerberger, General Shale, and Meridian are ordered and directed, within 30 calendar days after the Court's entry of the Asset Preservation Stipulation and Order in this matter, to divest the Divestiture Assets in a manner consistent with this Final Judgment to RemSom or another Acquirer acceptable to the United States, in its sole discretion. The United States, in its sole discretion, may agree to one or more extensions of this time period not to exceed 60 calendar days in total and will notify the Court of any extensions.
B. Defendants Wienerberger, General Shale, and Meridian must use best efforts to divest the Divestiture Assets as expeditiously as possible. Defendants must take no action that would jeopardize the completion of the divestiture ordered by the Court, including any action to impede the permitting, operation, or divestiture of the Divestiture Assets.
C. Unless the United States otherwise consents in writing, divestiture pursuant to this Final Judgment must include the entire Divestiture Assets and must be accomplished in such a way as to satisfy the United States, in its sole discretion, that the Divestiture Assets can and will be used by Acquirer as part of a viable, ongoing business of the design, manufacture, and sale of residential bricks and that the divestiture to Acquirer will remedy the competitive harm alleged in the Complaint.
D. The divestiture must be made to an Acquirer that, in the United States' sole judgment, has the intent and capability, including the necessary managerial, operational, technical, and financial capability, to compete effectively in the design, manufacture, and sale of residential bricks.
E. The divestiture must be accomplished in a manner that satisfies the United States, in its sole discretion, that none of the terms of any agreement between Acquirer and Defendants Wienerberger, General Shale, and Meridian gives those Defendants the ability unreasonably to raise Acquirer's costs, to lower Acquirer's efficiency, or otherwise interfere in the ability of Acquirer to compete effectively in the design, manufacture, and sale of residential bricks.
F. In the event Defendants Wienerberger, General Shale, and Meridian are attempting to divest the Divestiture Assets to an Acquirer other than RemSom, Defendants Wienerberger, General Shale, and Meridian promptly must make known, by usual and customary means, the availability of the Divestiture Assets. Defendants Wienerberger, General Shale, and Meridian must inform any person making an inquiry relating to a possible purchase of the Divestiture Assets that the Divestiture Assets are being divested in accordance with this Final Judgment and must provide that person with a copy of this Final Judgment. Defendants Wienerberger, General Shale, and Meridian must offer to furnish to all prospective Acquirers, subject to customary confidentiality assurances, all information and documents relating to the Divestiture Assets that are customarily provided in a due diligence process;
G. Defendants Wienerberger, General Shale, and Meridian must provide prospective Acquirers with (1) access to make inspections of the Divestiture Assets; (2) access to all environmental, zoning, and other permitting documents and information relating to the Divestiture Assets; and (3) access to all financial, operational, or other documents and information relating to the Divestiture Assets that would customarily be provided as part of a due diligence process. Defendants Wienerberger, General Shale, and Meridian also must disclose all encumbrances on any part of the Divestiture Assets, including on intangible property.
H. Defendants Wienerberger, General Shale, and Meridian must cooperate with and assist Acquirer in identifying and, at the option of Acquirer, in hiring all Relevant Personnel, including:
1. Within 10 business days following the filing of the Complaint in this matter, Defendants Wienerberger, General Shale, and Meridian must identify all Relevant Personnel to Acquirer and the United States, including by providing organization charts covering all Relevant Personnel.
2. Within 10 business days following receipt of a request by Acquirer or the United States, Defendants Wienerberger, General Shale, and Meridian must provide to Acquirer and the United States additional information relating to Relevant Personnel, including name, job title, reporting relationships, past experience, responsibilities, training and educational histories, relevant certifications, and job performance evaluations. Defendants Wienerberger, General Shale, and Meridian must also provide to Acquirer and the United States information relating to current and accrued compensation and benefits of Relevant Personnel, including most recent bonuses paid, aggregate annual compensation, current target or guaranteed bonus, if any, any retention agreement or incentives, and any other payments due, compensation or benefit accrued, or promises made to the Relevant Personnel. If Defendants Wienerberger, General Shale, and Meridian are barred by any applicable law from providing any of this information, those Defendants must provide, within 10 business days following receipt of the request, the requested information to the full extent
3. At the request of Acquirer, Defendants Wienerberger, General Shale, and Meridian must promptly make Relevant Personnel available for private interviews with Acquirer during normal business hours at a mutually agreeable location.
4. Defendants must not interfere with any effort by Acquirer to employ any Relevant Personnel. Interference includes offering to increase the compensation or improve the benefits of Relevant Personnel unless (a) the offer is part of a company-wide increase in compensation or improvement in benefits that was announced prior to the December 18, 2020, or (b) the offer is approved by the United States in its sole discretion. Defendants' obligations under this Paragraph will expire 180 days after the Divestiture Date.
5. For Relevant Personnel who elect employment with Acquirer within 180 days of the Divestiture Date, Defendants must waive all non-compete and non-disclosure agreements; vest and pay to the Relevant Personnel (or to Acquirer for payment to the employee) on a prorated basis any bonuses, incentives, other salary, benefits or other compensation fully or partially accrued at the time of the transfer of the employee to Acquirer; vest any unvested pension and other equity rights; and provide all other benefits that those Relevant Personnel otherwise would have been provided had the Relevant Personnel continued employment with Defendants, including any retention bonuses or payments. Defendants may maintain reasonable restrictions on disclosure by Relevant Personnel of Defendants' proprietary non-public information that is unrelated to the design, manufacture, and sale of residential bricks and not otherwise required to be disclosed by this Final Judgment.
6. For a period of 12 months from the Divestiture Date, Defendants Wienerberger, General Shale, and Meridian may not solicit to rehire Relevant Personnel who were hired by Acquirer within 180 days of the Divestiture Date unless (a) an individual is terminated or laid off by Acquirer or (b) Acquirer agrees in writing that Defendants Wienerberger, General Shale, and Meridian may solicit to re-hire that individual. Nothing in this Paragraph prohibits Defendants Wienerberger, General Shale, and Meridian from advertising employment openings using general solicitations or advertisements and re-hiring Relevant Personnel who apply for an employment opening through a general solicitation or advertisement.
I. Defendants Wienerberger, General Shale, and Meridian must warrant to Acquirer that (1) the Divestiture Assets will be operational and without material defect on the date of their transfer to Acquirer; (2) there are no material defects in the environmental, zoning, or other permits relating to the operation of the Divestiture Assets; and (3) all encumbrances on any part of the Divestiture Assets, including on intangible property, have been disclosed. Following the sale of the Divestiture Assets, Defendants must not undertake, directly or indirectly, challenges to the environmental, zoning, or other permits relating to the operation of the Divestiture Assets.
J. Defendants Wienerberger, General Shale, and Meridian must assign, subcontract, or otherwise transfer all contracts, agreements, and customer and distributor relationships (or portions of such contracts, agreements, and relationships) included in the Divestiture Assets, including all supply and sales contracts to Acquirer;
K. Defendants Wienerberger, General Shale, and Meridian must use best efforts to assist Acquirer to obtain all necessary licenses, registrations, and permits to operate the Divestiture Assets. Until Acquirer obtains the necessary licenses, registrations, and permits, Defendants Wienerberger, General Shale, and Meridian must provide Acquirer with the benefit of the licenses, registrations, and permits of Defendants Wienerberger, General Shale, and Meridian to the full extent permissible by law.
L. At the option of Acquirer, and subject to approval by the United States in its sole discretion, on or before the Divestiture Date, Defendants Wienerberger, General Shale, and Meridian must enter into a contract to provide transition services for back office, human resources, accounting, employee health and safety, and information technology services and support for a period of up to 12 months on terms and conditions reasonably related to market conditions for the provision of the transition services. Any amendment to or modification of any provision of a contract to provide transition services is subject to approval by the United States, in its sole discretion. The United States, in its sole discretion, may approve one or more extensions of any contract for transition services, for a total of up to an additional six months. If Acquirer seeks an extension of the term of any contract for transition services, Defendants Wienerberger, General Shale, and Meridian must notify the United States in writing at least three months prior to the date the contract expires. Acquirer may terminate a contract for transition services, or any portion of a contract for transition services, without cost or penalty at any time upon commercially reasonable written notice. The employee(s) of Defendants Wienerberger, General Shale, and Meridian tasked with providing transition services must not share any competitively sensitive information of Acquirer with any other employee of Defendants Wienerberger, General Shale, and Meridian.
M. If any term of an agreement between Defendants Wienerberger, General Shale, and Meridian and Acquirer, including an agreement to effectuate the divestiture required by this Final Judgment, varies from a term of this Final Judgment, to the extent that Defendants Wienerberger, General Shale, and Meridian cannot fully comply with both, this Final Judgment determines the obligations of Defendants Wienerberger, General Shale, and Meridian.
A. If Defendants Wienerberger, General Shale, and Meridian have not divested the Divestiture Assets within the period specified in Paragraph IV.A, Defendants Wienerberger, General Shale, and Meridian must immediately notify the United States of that fact in writing. Upon application of the United States, which Defendants may not oppose, the Court will appoint a divestiture trustee selected by the United States and approved by the Court to effect the divestiture of the Divestiture Assets.
B. After the appointment of a divestiture trustee by the Court, only the divestiture trustee will have the right to sell the Divestiture Assets. The divestiture trustee will have the power and authority to accomplish the divestiture to an Acquirer acceptable to the United States, in its sole discretion, at a price and on terms obtainable
C. Defendants Wienerberger, General Shale, and Meridian may not object to a sale by the divestiture trustee on any ground other than malfeasance by the divestiture trustee. Objections by Defendants Wienerberger, General Shale, and Meridian must be conveyed in writing to the United States and the divestiture trustee within 10 calendar days after the divestiture trustee has provided the notice of proposed divestiture required by Section VI.
D. The divestiture trustee will serve at the cost and expense of Defendants Wienerberger, General Shale, and Meridian pursuant to a written agreement, on terms and conditions, including confidentiality requirements and conflict of interest certifications, approved by the United States in its sole discretion.
E. The divestiture trustee may hire at the cost and expense of Defendants Wienerberger, General Shale, and Meridian any agents or consultants, including investment bankers, attorneys, and accountants, that are reasonably necessary in the divestiture trustee's judgment to assist with the divestiture trustee's duties. These agents or consultants will be accountable solely to the divestiture trustee and will serve on terms and conditions, including confidentiality requirements and conflict-of-interest certifications, approved by the United States in its sole discretion.
F. The compensation of the divestiture trustee and agents or consultants hired by the divestiture trustee must be reasonable in light of the value of the Divestiture Assets and based on a fee arrangement that provides the divestiture trustee with incentives based on the price and terms of the divestiture and the speed with which it is accomplished. If the divestiture trustee and Defendants Wienerberger, General Shale, and Meridian are unable to reach agreement on the divestiture trustee's compensation or other terms and conditions of engagement within 14 calendar days of the appointment of the divestiture trustee by the Court, the United States, in its sole discretion, may take appropriate action, including by making a recommendation to the Court. Within three business days of hiring an agent or consultant, the divestiture trustee must provide written notice of the hiring and rate of compensation to Defendants Wienerberger, General Shale, and Meridian and the United States.
G. The divestiture trustee must account for all monies derived from the sale of the Divestiture Assets sold by the divestiture trustee and all costs and expenses incurred. Within 30 calendar days of the Divestiture Date, the divestiture trustee must submit that accounting to the Court for approval. After approval by the Court of the divestiture trustee's accounting, including fees for unpaid services and those of agents or consultants hired by the divestiture trustee, all remaining money must be paid to Defendants Wienerberger, General Shale, and Meridian and the trust will then be terminated.
H. Defendants Wienerberger, General Shale, and Meridian must use best efforts to assist the divestiture trustee to accomplish the required divestiture. Subject to reasonable protection for trade secrets, other confidential research, development, or commercial information, or any applicable privileges, Defendants Wienerberger, General Shale, and Meridian must provide the divestiture trustee and agents or consultants retained by the divestiture trustee with full and complete access to all personnel, books, records, and facilities of the Divestiture Assets. Defendants Wienerberger, General Shale, and Meridian also must provide or develop financial and other information relevant to the Divestiture Assets that the divestiture trustee may reasonably request. Defendants must not take any action to interfere with or to impede the divestiture trustee's accomplishment of the divestiture.
I. The divestiture trustee must maintain complete records of all efforts made to sell the Divestiture Assets, including by filing monthly reports with the United States setting forth the divestiture trustee's efforts to accomplish the divestiture ordered by this Final Judgment. The reports must include the name, address, and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring any interest in the Divestiture Assets and must describe in detail each contact.
J. If the divestiture trustee has not accomplished the divestiture ordered by this Final Judgment within six months of appointment, the divestiture trustee must promptly provide the United States with a report setting forth: (1) The divestiture trustee's efforts to accomplish the required divestiture; (2) the reasons, in the divestiture trustee's judgment, why the required divestiture has not been accomplished; and (3) the divestiture trustee's recommendations for completing the divestiture. Following receipt of that report, the United States may make additional recommendations to the Court. The Court thereafter may enter such orders as it deems appropriate to carry out the purpose of this Final Judgment, which may include extending the trust and the term of the divestiture trustee's appointment by a period requested by the United States.
K. The divestiture trustee will serve until divestiture of all Divestiture Assets is completed or for a term otherwise ordered by the Court.
L. If the United States determines that the divestiture trustee is not acting diligently or in a reasonably cost-effective manner, the United States may recommend that the Court appoint a substitute divestiture trustee.
A. Within two business days following execution of a definitive agreement with an Acquirer other than RemSom to divest the Divestiture Assets, Defendants Wienerberger, General Shale, and Meridian or the divestiture trustee, whichever is then responsible for effecting the divestiture, must notify the United States of the proposed divestiture. If the divestiture trustee is responsible for completing the divestiture, the divestiture trustee also must notify Defendants Wienerberger, General Shale, and Meridian. The notice must set forth the details of the proposed divestiture and list the name, address, and telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in the Divestiture Assets.
B. Within 15 calendar days of receipt by the United States of the notice required by Paragraph VI.A, the United States may request from Defendants Wienerberger, General Shale, and Meridian, the proposed Acquirer, other third parties, or the divestiture trustee additional information concerning the proposed divestiture, the proposed Acquirer, and other prospective Acquirers. Defendants Wienerberger, General Shale, and Meridian and the divestiture trustee must furnish the additional information requested within 15 calendar days of the receipt of the request unless the United States provides written agreement to a different period.
C. Within 45 calendar days after receipt of the notice required by
D. No information or documents obtained pursuant to this Section may be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party, including grand-jury proceedings, for the purpose of evaluating a proposed Acquirer or securing compliance with this Final Judgment, or as otherwise required by law.
E. In the event of a request by a third party for disclosure of information under the Freedom of Information Act, 5 U.S.C. 552, the United States Department of Justice's Antitrust Division will act in accordance with that statute, and the Department of Justice regulations at 28 CFR part 16, including the provision on confidential commercial information, at 28 CFR 16.7. Persons submitting information to the Antitrust Division should designate the confidential commercial information portions of all applicable documents and information under 28 CFR 16.7. Designations of confidentiality expire ten years after submission, “unless the submitter requests and provides justification for a longer designation period.”
F. If at the time that a person furnishes information or documents to the United States pursuant to this Section, that person represents and identifies in writing information or documents for which a claim of protection may be asserted under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure, and marks each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,” the United States must give that person ten calendar days' notice before divulging the material in any legal proceeding (other than a grand-jury proceeding).
Defendants may not finance all or any part of Acquirer's purchase of all or part of the Divestiture Assets.
Defendants must take all steps necessary to comply with the Asset Preservation Stipulation and Order entered by the Court.
A. Within 20 calendar days of the filing of the Complaint in this matter, and every 30 calendar days thereafter until the divestiture required by this Final Judgment has been completed, Defendant Wienerberger must deliver to the United States an affidavit, signed by Defendant Wienerberger's Chief Executive Officer and General Counsel, Defendant General Shale must deliver to the United States an affidavit, signed by Defendant General Shale's Chief Executive Officer and Chief Financial Officer, and Defendant Meridian must deliver to the United States an affidavit signed by Defendant Meridian's Chief Executive Officer and Chief Financial Officer, describing in reasonable detail the fact and manner of that Defendant's compliance with this Final Judgment. The United States, in its sole discretion, may approve different signatories for the affidavits.
B. In the event Defendants Wienerberger, General Shale, and Meridian are attempting to divest the Divestiture Assets to an Acquirer other than RemSom, each affidavit required by Paragraph IX.A must include: (1) The name, address, and telephone number of each person who, during the preceding 30 calendar days, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, an interest in the Divestiture Assets and describe in detail each contact with such persons during that period; (2) a description of the efforts Defendants Wienerberger, General Shale, and Meridian have taken to solicit buyers for and complete the sale of the Divestiture Assets and to provide required information to prospective Acquirers; and (3) a description of any limitations placed by Defendants Wienerberger, General Shale, and Meridian on information provided to prospective Acquirers. Objection by the United States to information provided by Defendants Wienerberger, General Shale, and Meridian to prospective Acquirers must be made within 14 calendar days of receipt of the affidavit, except that the United States may object at any time if the information set forth in the affidavit is not true or complete.
C. Defendants Wienerberger, General Shale, and Meridian must keep all records of any efforts made to divest the Divestiture Assets until one year after the Divestiture Date.
D. Within 20 calendar days of the filing of the Complaint in this matter, Defendant Wienerberger, Defendant General Shale, and Defendant Meridian must deliver to the United States an affidavit signed by each Defendant's Chief Executive Officer and Chief Financial Officer, that describes in reasonable detail all actions that Defendants have taken and all steps that Defendants Wienerberger, General Shale, and Meridian have implemented on an ongoing basis to comply with Section VIII of this Final Judgment. The United States, in its sole discretion, may approve different signatories for the affidavits.
E. If a Defendant makes any changes to the actions and steps described in affidavits provided pursuant to Paragraph IX.D, the Defendant must, within 15 calendar days after any change is implemented, deliver to the United States an affidavit describing those changes.
F. Defendants Wienerberger, General Shale, and Meridian must keep all records of any efforts made to comply with Section VIII until one year after the Divestiture Date.
A. For the purposes of determining or securing compliance with this Final Judgment or of related orders such as the Asset Preservation Stipulation and Order or of determining whether this Final Judgment should be modified or vacated, upon written request of an authorized representative of the Assistant Attorney General for the Antitrust Division, and reasonable notice to Defendants, Defendants must permit, from time to time and subject to legally recognized privileges, authorized representatives, including agents retained by the United States:
1. to have access during Defendants' office hours to inspect and copy, or at the option of the United States, to require Defendants to provide electronic copies of all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of
2. to interview, either informally or on the record, Defendants' officers, employees, or agents, who may have their individual counsel present, relating to any matters contained in this Final Judgment. The interviews must be subject to the reasonable convenience of the interviewee and without restraint or interference by Defendants.
B. Upon the written request of an authorized representative of the Assistant Attorney General for the Antitrust Division, Defendants must submit written reports or respond to written interrogatories, under oath if requested, relating to any matters contained in this Final Judgment.
C. No information or documents obtained by the United States pursuant to this Section may be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party, including grand jury proceedings, for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
D. In the event of a request by a third party for disclosure of information under the Freedom of Information Act, 5 U.S.C. 552, the Antitrust Division will act in accordance with that statute, and the Department of Justice regulations at 28 CFR part 16, including the provision on confidential commercial information, at 28 CFR 16.7. Defendants submitting information to the Antitrust Division should designate the confidential commercial information portions of all applicable documents and information under 28 CFR 16.7. Designations of confidentiality expire ten years after submission, “unless the submitter requests and provides justification for a longer designation period.”
E. If at the time that Defendants furnish information or documents to the United States pursuant to this Section, Defendants represent and identify in writing information or documents for which a claim of protection may be asserted under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure, and Defendants mark each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,” the United States must give Defendants ten (10) calendar days' notice before divulging the material in any legal proceeding (other than a grand jury proceeding).
A. Unless a transaction is otherwise subject to the reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. 18a (the “HSR Act”), Defendants Wienerberger, General Shale, and Meridian may not, without first providing at least 30 calendar days advance notification to the United States, directly or indirectly acquire any assets of or any interest, including a financial, security, loan, equity, or management interest, in an entity involved in the design, manufacture, or sale of residential bricks in Alabama, Indiana, Kentucky, Michigan, Ohio, or Tennessee during the term of this Final Judgment.
B. Defendants Wienerberger, General Shale, and Meridian must provide the notification required by this Section in the same format as, and in accordance with the instructions relating to, the Notification and Report Form set forth in the Appendix to Part 803 of Title 16 of the Code of Federal Regulations, as amended, except that the information requested in Items 5 through 8 of the instructions must be provided only about the design, manufacture, and sale of residential bricks in the United States.
C. Notification must be provided at least 30 calendar days before acquiring any assets or interest and must include, beyond the information required by the instructions, the names of the principal representatives who negotiated the transaction on behalf of each party, and all management or strategic plans discussing the proposed transaction. If, within the 30 calendar days following notification, representatives of the United States make a written request for additional information, Defendants Wienerberger, General Shale, and Meridian may not consummate the proposed transaction until 30 calendar days after submitting all requested information.
D. Early termination of the waiting periods set forth in this Section may be requested and, where appropriate, granted in the same manner as is applicable under the requirements and provisions of the HSR Act and rules promulgated thereunder. This Section must be broadly construed, and any ambiguity or uncertainty relating to whether to file a notice under this Section must be resolved in favor of filing notice.
Defendants Wienerberger, General Shale, and Meridian may not reacquire any part of or any interest in the Divestiture Assets during the term of this Final Judgment without prior authorization of the United States.
The Court retains jurisdiction to enable any party to this Final Judgment to apply to the Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions.
A. The United States retains and reserves all rights to enforce the provisions of this Final Judgment, including the right to seek an order of contempt from the Court. Defendants agree that in a civil contempt action, a motion to show cause, or a similar action brought by the United States relating to an alleged violation of this Final Judgment, the United States may establish a violation of this Final Judgment and the appropriateness of a remedy therefor by a preponderance of the evidence, and Defendants waive any argument that a different standard of proof should apply.
B. This Final Judgment should be interpreted to give full effect to the procompetitive purposes of the antitrust laws and to restore the competition the United States alleges was harmed by the challenged conduct. Defendants agree that they may be held in contempt of, and that the Court may enforce, any provision of this Final Judgment that, as interpreted by the Court in light of these procompetitive principles and applying ordinary tools of interpretation, is stated specifically and in reasonable detail, whether or not it is clear and unambiguous on its face. In any such interpretation, the terms of this Final Judgment should not be construed against either party as the drafter.
C. In an enforcement proceeding in which the Court finds that Defendants have violated this Final Judgment, the United States may apply to the Court for an extension of this Final Judgment, together with other relief that may be appropriate. In connection with a successful effort by the United States to enforce this Final Judgment against a Defendant, whether litigated or resolved before litigation, that Defendant agrees to reimburse the United States for the fees and expenses of its attorneys, as well as all other costs including experts' fees, incurred in connection with that effort to enforce this Final Judgment, including in the investigation of the potential violation.
D. For a period of four years following the expiration of this Final Judgment, if the United States has evidence that a Defendant violated this Final Judgment before it expired, the United States may file an action against that Defendant in this Court requesting that the Court order: (1) Defendant to comply with the terms of this Final Judgment for an additional term of at least four years following the filing of the enforcement action; (2) all appropriate contempt remedies; (3) additional relief needed to ensure the Defendant complies with the terms of this Final Judgment; and (4) fees or expenses as called for by this Section.
Unless the Court grants an extension, this Final Judgment will expire 10 years from the date of its entry, except that after five years from the date of its entry, this Final Judgment may be terminated upon notice by the United States to the Court and Defendants that the divestiture has been completed and continuation of this Final Judgment is no longer necessary or in the public interest.
Entry of this Final Judgment is in the public interest. The parties have complied with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16, including by making available to the public copies of this Final Judgment and the Competitive Impact Statement, public comments thereon, and any response to comments by the United States. Based upon the record before the Court, which includes the Competitive Impact Statement and, if applicable, any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest.
In accordance with the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h) (the “APPA” or “Tunney Act”), the United States of America files this Competitive Impact Statement related to the proposed Final Judgment filed in this civil antitrust proceeding.
On December, 18, 2020, General Shale Brick, Inc. (“General Shale”), a subsidiary of Wienerberger AG, announced its intention to acquire Meridian Brick LLC (“Meridian”) from Meridian's parent companies, Boral Limited and LSF9 Stardust Super Holdings, L.P. as part of a total transaction valued at approximately $250 million. The United States filed a civil antitrust Complaint on October 1, 2021, seeking to enjoin the proposed acquisition. The Complaint alleges that the likely effect of this acquisition would be to substantially lessen competition for the design, manufacture, and sale of residential brick in eight geographic markets in the midwestern and southern United States in violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
At the same time the Complaint was filed, the United States filed a proposed Final Judgment and an Asset Preservation Stipulation and Order (“Stipulation and Order”), which are designed to remedy the loss of competition alleged in the Complaint.
Under the proposed Final Judgment, which is explained more fully below, Defendants are required to divest specified residential brick manufacturing and sales assets located within seven states.
Under the terms of the Stipulation and Order, Defendants must take certain steps to ensure that the assets that must be divested are operated as ongoing, economically viable, competitive assets for the design, manufacture, and sale of residential brick and must take all other actions to preserve and maintain the full economic viability, marketability, and competitiveness of the assets to be divested. On October 5, 2021, the Court entered the Stipulation and Order.
The United States and Defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA. Entry of the proposed Final Judgment will terminate this action, except that the Court will retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations thereof.
On December 18, 2020, General Shale announced its intention to acquire Meridian from Boral Limited and LSF9 Stardust Super Holdings, L.P. in a total transaction valued at approximately $250 million.
General Shale is a Delaware corporation headquartered in Johnson City, Tennessee. It is a leading U.S. producer of building material solutions and one of North America's largest brick, stone, and concrete block manufacturers. General Shale operates 11 production facilities in 10 states and provinces. It also has a network of 21 sales locations and more than 200 affiliated distributors in North America.
Wienerberger AG is General Shale's parent company. Based in Vienna, Austria, it is one of the world's largest building materials manufacturers. Wienerberger AG operates manufacturing and distribution facilities for brick and other construction materials in three continents, including in North America through its subsidiary General Shale. In 2020, Wienerberger AG's North American business generated revenues of approximately $370 million, 78% of which was derived from brick sales, including residential brick sales.
Meridian is a Delaware limited liability company headquartered in Alpharetta, Georgia. Meridian manufactures and sells construction materials, including commercial and residential brick and masonry materials. Meridian is the largest brick supplier in the United States. During the fiscal year 2020, Meridian generated over $400 million in revenues, primarily from brick sales, including residential brick sales. Meridian and its sister company Meridian Brick Canada Ltd. make up the Meridian Group. The Meridian Group is directly and indirectly owned by Boral Limited and LSF9 Stardust Super Holdings, L.P. Boral Limited and LSF9 Stardust Super Holdings, L.P. formed Meridian as a joint venture in 2016.
Residential brick is a type of exterior cladding that is used to protect homes and other buildings from weather and the elements. It comes in various sizes and colors and is primarily comprised of shale or red clay that has been fired in a kiln. Residential brick of each color and size is manufactured in a substantially similar process, with minor adjustments in the amount of clay or type of color additives used to make a particular brick model. Indeed, although residential brick comes in varying sizes (
Residential brick is distinct from commercial brick. Residential brick is less expensive than commercial brick due to different manufacturing processes. In particular, commercial brick is made by a process called through-body extrusion. Through-body extrusion entails a rigorous coloring process that ensures uniform coloring throughout the body of the brick. This achieves the higher color quality required of commercial brick. By contrast, residential brick is often colored only on the outer portion of the brick, and the residential brick manufacturing process requires fewer additives and other costly inputs.
Residential brick must meet standard specifications for residential use that are set by the American Society for Testing and Materials (“ASTM”). These standards require certain durability and load capabilities that differentiate residential brick from decorative paving brick as well as “thin” brick, which is a fraction of the thickness of residential brick and has lower structural requirements because it is ornamental.
Residential brick is distinct from other types of exterior cladding. It has both performance characteristics (such as durability and structural integrity) and aesthetic traits that distinguish it from products such as siding and other exterior claddings. Customers who prefer the look of residential brick, or whose projects require the unique properties of residential brick, cannot reasonably turn to alternative exterior cladding solutions.
As alleged in the Complaint, because of these unique characteristics, substitution away from residential brick in the event of a small but significant increase in price by a hypothetical monopolist of residential brick would be insufficient to make such a price increase unprofitable. Accordingly, residential brick is a line of commerce, or relevant product market, for purposes of analyzing the effects of the proposed acquisition under Section 7 of the Clayton Act.
Residential brick is generally transported by truck. Transportation costs can be substantial and typically range from 15% to 30% of the total price of residential brick. As a result, the Complaint alleges the geographic markets for residential brick tend to be local, with the specific geographic boundaries of any local market also determined by road infrastructure, traffic conditions, and natural conditions, such as mountain ranges that impose significantly higher fuel costs on the transportation of residential brick to customers in local markets.
As alleged in the Complaint, the transaction would likely harm competition for residential brick in the following Metropolitan Statistical Areas (“MSAs”):
In each of these relevant markets, the Complaint alleges a small but significant increase in price by a hypothetical monopolist of residential brick would not be defeated by substitution to commercial brick or other claddings, other construction materials, or by arbitrage—
The Complaint alleges the proposed transaction would significantly increase concentration in the relevant markets and harm consumers by eliminating the substantial head-to-head competition that currently exists between General Shale and Meridian.
For each relevant market, General Shale and Meridian are among the top suppliers of residential brick by volume sold and have a competitive advantage because of the proximity of their manufacturing facilities to customers in each relevant market. Further, only two or three significant competitors, including General Shale and Meridian, supply each relevant market. Other residential brick suppliers face significantly higher transportation costs to serve these markets and thus have limited competitive significance. Competition between General Shale and Meridian has also spurred product innovation that has yielded higher quality and a variety of innovative residential brick products, including new colors, textures, and facing styles.
As alleged in the Complaint, homebuilders and other customers in the relevant markets thus rely on competition between General Shale and Meridian to supply a variety of quality residential brick at competitive prices. By eliminating this competition, the proposed transaction would likely lead to higher prices and reduced investment in innovation and quality.
In 2020, Tennessee was the second-largest brick consuming state in the United States. General Shale and Meridian supplied approximately 54% of the total brick volume sold in Tennessee in 2020. General Shale and Meridian are particularly important suppliers for the Nashville MSA, where they are the top two suppliers of residential brick by volume and face only each other as significant competitors. General Shale and Meridian are the only significant suppliers of residential brick that operate brick manufacturing facilities located within 150 miles of Nashville, and no other significant supplier has a manufacturing facility located within 200 miles.
General Shale and Meridian are also important suppliers of residential brick for the Memphis MSA, where they face only one other significant competitor. These three firms are the only significant suppliers that operate brick manufacturing facilities within 200 miles of Memphis, and no other significant supplier of residential brick has a facility located within 350 miles.
Alabama consumed the fifth most bricks of any state in the nation in 2020. General Shale and Meridian are two of the top three residential brick suppliers in Alabama and combined supplied over 43% of the total brick volume sold in Alabama in 2020. General Shale and Meridian are particularly important suppliers for the Huntsville MSA, where they are two of the top three residential brick suppliers by volume and face only one other significant competitor. These three firms are the only significant suppliers that operate a residential brick manufacturing facility located within 125 miles of Huntsville.
General Shale and Meridian supplied over 50% of the total brick volume sold in Kentucky in 2020. General Shale and Meridian are particularly important suppliers for the Lexington MSA, where they are the two largest suppliers of residential brick by volume and face only each other as significant competitors. General Shale and Meridian are the only significant residential brick suppliers located within 50 miles of Lexington; the next closest residential brick manufacturer is over 230 miles away.
General Shale and Meridian are also important residential brick suppliers for the Louisville MSA. In the Louisville MSA, the proposed acquisition would reduce the number of significant competitors for residential brick from three to two, as the merging parties own two of the three brick manufacturing facilities located within 200 miles of Louisville. Following the transaction, the third-closest significant residential brick manufacturer would be located over 300 miles away.
General Shale and Meridian are the top two suppliers of residential brick to customers in Indiana. In 2020, they combined to supply over 45% of the total brick volume sold in the state. General Shale and Meridian are particularly important suppliers of residential brick for the Indianapolis MSA, where they face only one other significant competitor. These three firms are the only significant suppliers that operate a residential brick manufacturing facility located within 100 miles of Indianapolis, with the next closest competitor located almost 350 miles away.
General Shale and Meridian are the first and third largest suppliers of brick to customers in Michigan. In 2020, General Shale and Meridian supplied 45% of the total brick volume sold in the state. General Shale and Meridian are particularly important suppliers for the Detroit MSA, where they are the top two competitors for residential brick by volume. In this market, the proposed acquisition would reduce the number of significant suppliers for residential brick from three to two with these three firms being the only significant suppliers that operate residential brick manufacturing facilities within 375 miles of Detroit.
General Shale and Meridian are the top two residential brick suppliers to customers in Ohio. In 2020, General Shale and Meridian supplied 28% of the total brick volume sold in the state. General Shale and Meridian are particularly important suppliers for the Cincinnati MSA, where they are the top two competitors for residential brick by volume and face only one other significant supplier. These three firms are the only significant suppliers with residential brick manufacturing facilities located within 200 miles of Cincinnati, and no other significant manufacturer has a facility within 350 miles.
As alleged in the Complaint, entry of new competitors into the relevant residential brick markets would be costly, time consuming, and is unlikely to prevent the harm to competition that is likely to result if the proposed transaction were to proceed unremedied. The time and expense required to construct manufacturing facilities, acquire necessary equipment, develop product formulas, and overcome various regulatory hurdles would take years of planning and significant financial investment.
Additionally, repositioning by a commercial brick manufacturer is also unlikely to lessen the harm that would likely result from the proposed transaction. This is because commercial brick yields higher profit margin than residential brick, and, accordingly, such a switch would come at a significant opportunity cost that commercial brick manufacturers are unlikely to be incentivized to make.
The relief required by the proposed Final Judgment will remedy the loss of competition alleged in the Complaint by establishing an independent and economically viable competitor in the design, manufacture, and sale of residential brick in the eight geographic markets alleged in the Complaint.
Paragraph IV(A) of the proposed Final Judgment requires Defendants, within 30 days after the entry of the Stipulation and Order by the Court, to divest the Divestiture Assets (capitalized terms are defined in the proposed Final Judgment) to RemSom, LLC or an alternative acquirer acceptable to the United States, in its sole discretion. The assets must be divested in such a way as to satisfy the United States in its sole discretion, that the Divestiture Assets can and will be used by the Acquirer as part of a viable, ongoing business that can compete effectively in the design, manufacture, and sale of residential brick in the eight geographic markets alleged in the Complaint (proposed Final Judgment Paragraphs IV(C) and (D)). Defendants Wienerberger AG, General Shale, and Meridian must use best efforts to divest the Divestiture Assets expeditiously and may not take actions that would jeopardize the completion of the divestiture (proposed Final Judgment Paragraph IV(B)).
The Divestiture Assets are defined at Paragraph II(H) of the proposed Final Judgment. The Divestiture Assets are defined to include three manufacturing facilities, 14 Distribution Yards, and six mines, identified in Appendices A and B. The Divestiture Assets also include all tangible and intangible property and assets related or used in connection with the manufacturing facilities, mines, and Distribution Yards, except for the assets identified in Appendix C of the proposed Final Judgment and any trademarks, trade names, service marks, or service names containing the names “General Shale,” “Meridian,” “Watsontown,” “Columbus,” “Arriscraft,” or “Wienerberger.” The Divestiture Assets include all of the assets necessary for the Acquirer to operate an economically viable business that will remedy the harm that the United States allege would otherwise result from the transaction.
The proposed Final Judgment contains several provisions to facilitate the transition of the Divestiture Assets to the Acquirer. First, Paragraph IV(J) of the proposed Final Judgment facilitates the transfer of customers and other contractual relationships to the Acquirer. Defendants Wienerberger AG, General Shale, and Meridian must transfer all contracts, agreements, and relationships included in the Divestiture Assets to the Acquirer and must make best efforts to assign, subcontract, or otherwise transfer contracts or agreements that require the consent of another party before assignment, subcontracting, or other transfer.
Second, Paragraph IV(K) requires Defendants Wienerberger AG, General Shale, and Meridian to use their best efforts to assist the Acquirer in obtaining all of the licenses, registrations, and permits necessary to operate the Divestiture Assets. Paragraph IV(K) further requires Defendants Wienerberger AG, General Shale, and Meridian to provide the Acquirer with the benefit of Defendants
Third, Paragraph IV(L) of the proposed Final Judgment requires Defendants Wienerberger AG, General Shale, and Meridian, at the option of the Acquirer, and subject to the approval by the United States in its sole discretion, on or before the date of the divestiture, to enter into an agreement to provide transition services for back office, human resources, accounting, employee health and safety, and information technology services and support for the Divestiture Assets for a period of up to 12 months. The Acquirer may terminate the transition services agreement, or any portion of it, without cost or penalty at any time upon commercially reasonable written notice. The paragraph further provides that if the Acquirer seeks an extension of the term of any contract for transition services, Defendants Wienerberger AG, General Shale, and Meridian must notify the United States in writing at least three months prior to the date the contract expires. Paragraph IV(L) also provides that employees of Defendants Wienerberger AG, General Shale, and Meridian tasked with supporting this agreement must not share any competitively sensitive information of the Acquirer with any other employee of Defendants Wienerberger AG, General Shale, and Meridian.
The proposed Final Judgment also contains provisions intended to facilitate efforts by the Acquirer to hire certain employees. Specifically, Paragraph IV(H) of the proposed Final Judgment requires Defendants Wienerberger AG, General Shale, and Meridian to provide the Acquirer and the United States with organization charts and information relating to these employees and to make them available for interviews. It also provides that all Defendants must not interfere with any negotiations by the Acquirer to hire these employees. In addition, for employees who elect employment with the Acquirer, Defendants must waive all non-compete and non-disclosure agreements, vest and pay on a prorated basis any bonuses, incentive, other salary, benefits or other compensation fully or partially accrued at the time the employee transfers to the Acquirer, vest any unvested pension and other equity rights, and provide all other benefits that those employees otherwise would have been provided had those employees continued employment with Defendants, including but not limited to any retention bonuses or payments. This paragraph further provides that the Defendants Wienerberger AG, General Shale, and Meridian may not solicit to hire any employees who elect employment with the Acquirer, unless that individual is terminated or laid off by the Acquirer or the Acquirer agrees in writing that the Defendants Wienerberger AG, General Shale, and Meridian may solicit or hire that individual. The non-solicitation period runs for 12 months from the date of the divestiture. This paragraph does not prohibit Defendants Wienerberger AG, General Shale, and Meridian from advertising employment openings using general solicitations or advertisements and rehiring employees who apply for a position through a general solicitation or advertisement.
If Defendants Wienerberger AG, General Shale, and Meridian do not accomplish the divestiture within the period prescribed in Paragraph IV(A) of the proposed Final Judgment, Section V of the proposed Final Judgment provides that the Court will appoint a divestiture trustee selected by the United States to effect the divestiture. If a divestiture trustee is appointed, the proposed Final Judgment provides that Defendants Wienerberger AG, General Shale, and Meridian must pay all costs and expenses of the trustee. The divestiture trustee's compensation must be structured so as to provide an incentive for the trustee based on the price and terms obtained and the speed with which the divestiture is accomplished. After the divestiture trustee's appointment becomes effective, the trustee must provide monthly reports to the United States setting forth his or her efforts to accomplish the divestiture. If the divestiture has not been accomplished within six months of the divestiture trustee's appointment, the United States may make recommendations to the Court, which will enter such orders as appropriate, in order to carry out the purpose of the Final Judgment, including by extending the trust or the term of the divestiture trustee's appointment by a period requested by the United States.
Section XI of the proposed Final Judgment requires Defendants Wienerberger AG, General Shale, and Meridian, unless a transaction is otherwise subject to the reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. 18a (the “HSR Act”), to not directly or indirectly acquire any assets of or any interest, including a financial, security, loan, equity, or management interest, in an entity involved in the design, manufacture, and sale of residential brick in Alabama, Indiana, Kentucky, Michigan, Ohio, or Tennessee without first providing at least 30 calendar days advance notification to the United States. Pursuant to the proposed Final Judgment, during the term of the proposed Final Judgment, Defendants Wienerberger AG, General Shale, and Meridian must notify the United States of such acquisitions as it would for a required HSR Act filing, as specified in the Appendix to Part 803 of Title 16 of the Code of Federal Regulations. The proposed Final Judgment further provides for waiting periods and opportunities for the United States to obtain additional information analogous to the provisions of the HSR Act before such acquisitions can be consummated. Requiring notification of any such acquisition will permit the United States, as relevant, to assess the competitive effects of that acquisition before it is consummated and, if necessary, seek to enjoin the transaction.
The proposed Final Judgment also contains provisions designed to promote compliance with and make enforcement of the Final Judgment as effective as possible. Paragraph XIV(A) provides that the United States retains and reserves all rights to enforce the Final Judgment, including the right to seek an order of contempt from the Court. Under the terms of this paragraph, Defendants have agreed that in any civil contempt action, any motion to show cause, or any similar action brought by the United States regarding an alleged violation of the Final Judgment, the United States may establish the violation and the appropriateness of any remedy by a preponderance of the evidence and that Defendants have waived any argument that a different standard of proof should apply. This provision aligns the standard for compliance with the Final Judgment with the standard of proof that applies to the underlying offense that the Final Judgment addresses.
Paragraph XIV(B) provides additional clarification regarding the interpretation of the provisions of the proposed Final Judgment. The proposed Final Judgment is intended to remedy the loss of competition the United States alleges would otherwise be caused by the transaction. Defendants agree that they will abide by the proposed Final Judgment and that they may be held in contempt of the Court for failing to comply with any provision of the proposed Final Judgment that is stated
Paragraph XIV(C) provides that if the Court finds in an enforcement proceeding that a Defendant has violated the Final Judgment, the United States may apply to the Court for an extension of the Final Judgment, together with such other relief as may be appropriate. In addition, to compensate American taxpayers for any costs associated with investigating and enforcing violations of the Final Judgment, Paragraph XIV(C) provides that, in any successful effort by the United States to enforce the Final Judgment against a Defendant, whether litigated or resolved before litigation, the Defendant must reimburse the United States for attorneys' fees, experts' fees, and other costs incurred in connection with that effort to enforce this Final Judgment, including the investigation of the potential violation.
Paragraph XIV(D) states that the United States may file an action against a Defendant for violating the Final Judgment for up to four years after the Final Judgment has expired or been terminated. This provision is meant to address circumstances such as when evidence that a violation of the Final Judgment occurred during the term of the Final Judgment is not discovered until after the Final Judgment has expired or been terminated or when there is not sufficient time for the United States to complete an investigation of an alleged violation until after the Final Judgment has expired or been terminated. This provision, therefore, makes clear that, for four years after the Final Judgment has expired or been terminated, the United States may still challenge a violation that occurred during the term of the Final Judgment.
Finally, Section XV of the proposed Final Judgment provides that the Final Judgment will expire 10 years from the date of its entry, except that after five years from the date of its entry, the Final Judgment may be terminated upon notice by the United States to the Court and Defendants that the divestiture has been completed and continuation of the Final Judgment is no longer necessary or in the public interest.
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment neither impairs nor assists the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no prima facie effect in any subsequent private lawsuit that may be brought against Defendants.
The United States and Defendants have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry upon the Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least 60 days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within 60 days of the date of publication of this Competitive Impact Statement in the
Written comments should be submitted in English to: Jay D. Owen, Acting Chief, Defense, Industrials, and Aerospace Section, Antitrust Division, U.S. Department of Justice, 450 Fifth Street NW, Suite 8700, Washington, DC 20530.
The proposed Final Judgment provides that the Court retains jurisdiction over this action, and the parties may apply to the Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgment.
As an alternative to the proposed Final Judgment, the United States considered a full trial on the merits against Defendants. The United States could have continued the litigation and sought preliminary and permanent injunctions against General Shale's acquisition of Meridian. The United States is satisfied, however, that the relief required by the proposed Final Judgment will remedy the anticompetitive effects alleged in the Complaint, preserving competition for the design, manufacture, and sale of residential brick in the eight geographic markets alleged in the Complaint. Thus, the proposed Final Judgment achieves all or substantially all of the relief the United States would have obtained through litigation but avoids the time, expense, and uncertainty of a full trial on the merits.
Under the Clayton Act and APPA, proposed Final Judgments, or “consent decrees,” in antitrust cases brought by the United States are subject to a 60-day comment period, after which the Court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. 16(e)(1). In making that determination, the Court, in accordance with the statute as amended in 2004, is required to consider:
(A) The competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
As the U.S. Court of Appeals for the District of Columbia Circuit has held, under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations in the government's complaint, whether the proposed Final Judgment is sufficiently clear, whether its enforcement mechanisms are sufficient, and whether it may positively harm third parties.
The United States' predictions about the efficacy of the remedy are to be afforded deference by the Court.
Moreover, the Court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its complaint, and does not authorize the Court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
In its 2004 amendments to the APPA, Congress made clear its intent to preserve the practical benefits of using judgments proposed by the United States in antitrust enforcement, Pub. L. 108-237 § 221, and added the unambiguous instruction that “[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.” 15 U.S.C. 16(e)(2);
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
Dated: October19, 2021
Respectfully submitted,
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, Stipulation, and Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in
Copies of the Complaint, proposed Final Judgment, and Competitive Impact Statement are available for inspection on the Antitrust Division's website at
Public comment is invited within 60 days of the date of this notice. Such comments, including the name of the submitter, and responses thereto, will be posted on the Antitrust Division's website, filed with the Court, and, under certain circumstances, published in the
The United States of America (“United States”), acting under the direction of the Attorney General of the United States, brings this civil antitrust action against Defendants Neenah Enterprises, Inc. (“NEI”), U.S. Holdings, Inc., and its wholly-owned subsidiary U.S. Foundry and Manufacturing Corporation (“US Foundry”), to enjoin the proposed acquisition of US Foundry by NEI. The United States complains and alleges as follows:
1. Pursuant to a purchase agreement dated March 9, 2021, NEI proposes to acquire substantially all of the assets of U.S. Holdings' subsidiary US Foundry for approximately $110 million. Today, the Defendants compete vigorously across several states in the design, production, and sale of gray iron municipal castings that are used as manhole covers and frames, grates, and drains.
2. NEI and US Foundry are two of only three significant suppliers of gray iron municipal castings in eleven eastern and southern states (collectively, and as defined in paragraph 15,
3. As a result, the proposed acquisition would substantially lessen competition for the design, production, and sale of gray iron municipal castings in the overlap states in violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
4. NEI is a corporation headquartered in Neenah, Wisconsin, that specializes in the design, production, and sale of gray and ductile iron castings at two foundries in Neenah, Wisconsin, and Lincoln, Nebraska. NEI's Lincoln foundry produces exclusively gray iron municipal castings. NEI also offers forging, machining, and assembly of key components for heavy truck, agriculture, and industrial uses. NEI had 2020 revenues of $343.3 million, of which approximately $152 million was derived from gray iron municipal castings.
5. U.S. Holdings, based in Hialeah, Florida, is a holding company with two major subsidiaries, US Foundry and Eagle Metal Processing and Recycling, Inc. US Foundry has one iron foundry located in Medley, Florida, that makes gray iron municipal castings. US Foundry had 2020 revenues of approximately $90 million, of which approximately $73 million was derived from gray iron municipal castings.
6. On March 9, 2021, NEI and U.S. Holdings signed an agreement under which NEI will acquire US Foundry and
7. The United States brings this action under Section 15 of the Clayton Act, 15 U.S.C. 25, to prevent and restrain Defendants from violating Section 7 of the Clayton Act, 15 U.S.C. 18.
8. Defendants design and produce gray iron municipal castings for manhole covers and frames, grates, and drains, sold for use throughout several of the United States, and their activities in these areas substantially affect interstate commerce. This Court therefore has subject matter jurisdiction over this action pursuant to Section 15 of the Clayton Act, 15 U.S.C. 25, and 28 U.S.C. 1331, 1337(a), and 1345.
9. Defendants have consented to venue and personal jurisdiction in this judicial district. Venue is therefore proper in this district under Section 12 of the Clayton Act, 15 U.S.C. 22, and under 28 U.S.C. 1391(b) and (c).
10. Gray iron municipal castings are molded iron products produced at iron foundries and include products such as manhole covers and frames, drainage grates, inlets, and tree grates. Many of these castings are used by governmental and private customers to provide access to subterranean utility systems such as those for gas, sewage, and water management, and as such, these castings are necessary components for construction and infrastructure projects.
11. Gray iron municipal castings are customized to a purchaser's specifications for the physical characteristics of these products, including strength, width, length, and any distinguishing marks, such as municipal logos. Customer specifications are used by the manufacturer to make a reusable pattern that is an exact replica of the final product. During the casting process, reusable patterns are pressed into a sand mold box to create an impression in the sand. After the pattern is removed, molten iron is poured into the sand mold to create the casting. The casting is then removed, cooled, and finished by shot-blasting or other machining before being shipped to the customer.
12. Gray iron municipal castings are used most often in construction and infrastructure projects, with smaller volumes used for maintenance or repair purposes. A state department of transportation (“DOT”), county, or municipality typically determines the specifications of the gray iron municipal castings that can be used in projects within its authority. Municipalities and counties often adopt the relevant DOT's technical specifications, and commercial projects may choose to adopt DOT specifications even when not required. A DOT, county, or municipality also may have a qualified product list that identifies approved patterns and manufacturers for specific gray iron municipal castings.
13. There are no functional or economic substitutes for gray iron municipal castings, which are customized according to unique specifications designed to meet the customer's goals of subterranean access or water drainage as part of an integrated and possibly complex public infrastructure project. For example, a state DOT will specify the exact dimensions and structural requirements of each casting for all DOT construction products. Other customers, such as counties or municipalities within a state, will often use state DOT specifications for size and structural integrity, but will further customize their gray iron municipal castings by including the town name or other distinguishing marks on the casting or by specifying custom shapes for lifting holes. These customer-specified requirements mean that gray iron municipal castings made for a particular project or municipality typically cannot be used on other projects or in other areas.
14. Because there are no reasonable substitutes for gray iron municipal castings, a hypothetical monopolist of gray iron municipal castings could profitably impose a small but significant increase in price without losing significant sales to alternative products. The sale of gray iron municipal castings therefore constitutes a line of commerce within the meaning of Section 7 of the Clayton Act, 15 U.S.C. 18.
15. In Alabama, Florida, Georgia, Indiana, Maryland, New Jersey, New York, North Carolina, South Carolina, Tennessee, and Virginia (the “overlap states”), both NEI and US Foundry have committed significant capital to develop the specific patterns for gray iron municipal castings used by customers in those states and have made substantial investments to develop an efficient distribution network in those states for their gray iron municipal castings.
16. Because the custom design of a casting means a buyer cannot successfully use gray iron municipal castings designed for projects outside the overlap states for projects within the overlap states, customers cannot buy gray iron municipal castings designed for projects outside the overlap states to avoid a higher price charged by foundries designing castings for projects within the overlap states.
17. A hypothetical monopolist of gray iron municipal castings sold to customers in the overlap states could thus profitably impose a small but significant increase in the price of gray iron municipal castings without losing significant sales to product substitution or arbitrage. The sale of gray iron municipal castings to customers in the overlap states therefore constitutes a relevant market within the meaning of Section 7 of the Clayton Act, 15 U.S.C. 18.
18. NEI and US Foundry compete for sales of gray iron municipal castings primarily on the basis of price, quality, and speed of delivery. This competition has resulted in lower prices, higher quality, and shorter delivery times. This competition has been particularly important for customers in the overlap states where NEI and US Foundry compete vigorously today.
19. In the overlap states, NEI and US Foundry have developed hundreds of approved designs and patterns and are two of only three firms with a significant presence in the design, production, and sale of gray iron municipal castings. Both firms consistently bid on customer contracts in the overlap states, and customers use the competition between the two firms to obtain lower prices, higher quality, and shorter delivery times.
20. While other firms occasionally compete for contracts in the overlap states, these fringe competitors typically have a small presence and are unlikely to replace the competition lost as a result of the proposed transaction. In particular, other than NEI, US Foundry, and one other firm, smaller competitors have not invested the time and money to develop, seek approval for, and produce the hundreds of patterns necessary to compete for projects in the overlap states nor have they invested in distribution for castings within those states. As a result, these smaller competitors are severely disadvantaged because they cannot price competitively due to the fact that they must first design and seek approval for new patterns in order to bid for projects in
21. Because of the limited competitive significance of these fringe participants, a merged NEI/US Foundry would be faced with only one significant alternate supplier in the overlap states. Faced with limited competition, the merged firm likely would have the incentive and ability to increase prices, lower quality, and increase delivery times. The proposed acquisition, therefore, likely would substantially lessen competition in the design, production, and sale of gray iron municipal castings in the overlap states in violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
22. New production facilities, sales infrastructure, and distribution networks for gray iron municipal castings require a substantial investment in both capital equipment and human resources. To be competitively viable, a new entrant would need to construct a foundry or establish production lines at an existing foundry capable of manufacturing the castings, as well as establish a system of regional distribution. This process would be capital intensive and likely take years to complete.
23. Similarly, a firm currently making gray iron municipal castings for use outside the overlap states is unlikely to expand into the overlap states. This is because such an entrant would not have proven or approved designs and patterns or established local distribution. It is highly unlikely that new entrants or firms thinking of geographic expansion would invest the time and money needed to create a portfolio of new, as-yet unapproved designs and patterns of sufficient scale to compete in the overlap states on the speculative possibility of attracting enough new business to justify the investment.
24. As a result, entry or expansion into the market for gray iron municipal castings in the overlap states would not be timely, likely, or sufficient to defeat the anticompetitive effects likely to result from the combination of NEI and US Foundry.
25. NEI's proposed acquisition of US Foundry likely would substantially lessen competition in the design, production, and sale of gray iron municipal castings in the eleven overlap states listed above, in violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
26. Unless enjoined, the proposed acquisition would likely have the following anticompetitive effects, among others, related to the relevant market:
a. A substantial lessening of competition for gray iron municipal castings in the overlap states;
b. an elimination of actual and potential head-to-head competition between NEI and US Foundry for the design, production, and sale of gray iron municipal castings in the overlap states; and
c. prices for gray iron municipal castings in the overlap states would increase, the quality of those castings would decrease, and delivery times would increase.
27. The United States requests that this Court:
a. Adjudge and decree NEI's proposed acquisition of US Foundry to be unlawful and in violation of Section 7 of the Clayton Act, 15 U.S.C. 18;
b. preliminarily and permanently enjoin and restrain Defendants and all persons acting on their behalf from consummating the proposed acquisition of US Foundry by NEI, or from entering into or carrying out any other contract, agreement, plan, or understanding which would combine US Foundry's gray iron municipal castings business with NEI;
c. award the United States its costs for this action; and
d. award the United States such other and further relief as the Court deems just and proper.
Dated: October 14, 2021.
Respectfully submitted,
The Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief may be granted against Defendants under Section 7 of the Clayton Act (15 U.S.C. 18).
As used in this Final Judgment:
A. “NEI” means Defendant Neenah Enterprises, Inc., a Delaware corporation with its headquarters in Neenah, Wisconsin, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
B. “US Foundry” means Defendant U.S. Foundry and Manufacturing Corporation, a Florida corporation with its headquarters in Medley, Florida, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
C. “U.S. Holdings” means Defendant U.S. Holdings, Inc., a Florida corporation with its headquarters in Hialeah, Florida, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
D. “D&L Foundry” means D&L Foundry, Inc., a Washington corporation with its headquarters in Moses Lake, Washington, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
E. “Acquirer” means D&L Foundry or another entity approved by the United States in its sole discretion to which Defendants divest the Divestiture Assets.
F. “Divestiture Patterns” means the patterns listed in Appendix A.
G. “Divestiture Assets” means all of Defendants' rights, titles, and interests in and to
1. the Divestiture Patterns;
2. all drawings, measurements, and specifications relating to or used in connection with the Divestiture Patterns; and
3. all licenses, permits, certifications, approvals, consents, registrations, waivers, authorizations, and all pending applications or renewals for the same, relating to or used in connection with the Divestiture Patterns, including those issued or granted by any governmental entity or organization
H. “Divestiture Date” means the date on which the Divestiture Assets are divested to Acquirer pursuant to this Final Judgment.
I. “Including” means including, but not limited to.
J. “Transaction” means the proposed acquisition by NEI of certain assets from U.S. Holdings, pursuant to a purchase agreement dated March 9, 2021, between NEI and U.S. Holdings.
A. This Final Judgment applies to NEI, U.S. Holdings, and US Foundry, as defined above, and all other persons in active concert or participation with any Defendant who receive actual notice of this Final Judgment.
B. If, prior to complying with Section IV and Section V of this Final Judgment, Defendants sell or otherwise dispose of all or substantially all of their assets or business units that include the Divestiture Assets, Defendants must require any purchaser to be bound by the provisions of this Final Judgment. Defendants need not obtain such an agreement from Acquirer.
A. Defendants are ordered and directed, within 30 calendar days after the Court's entry of the Asset Preservation Stipulation and Order in this matter, to divest the Divestiture Assets in a manner consistent with this Final Judgment to D&L Foundry or another Acquirer acceptable to the United States, in its sole discretion. The United States, in its sole discretion, may agree to one or more extensions of this time period not to exceed 60 calendar days in total and will notify the Court of any extensions.
B. Defendants must use best efforts to divest the Divestiture Assets as expeditiously as possible. Defendants must take no action that would jeopardize the completion of the divestiture ordered by the Court, including any action to impede the permitting, operability, or divestiture of the Divestiture Assets.
C. Unless the United States otherwise consents in writing, divestiture pursuant to this Final Judgment must include the entire Divestiture Assets and must be accomplished in such a way as to satisfy the United States, in its sole discretion, that the Divestiture Assets can and will be used by Acquirer as part of a viable, ongoing business of the design, production, and sale, including distribution, of gray iron municipal castings and that the divestiture to Acquirer will remedy the competitive harm alleged in the Complaint.
D. The divestiture must be made to an Acquirer that, in the United States' sole judgment, has the intent and capability, including the necessary managerial, operational, technical, and financial capability, to compete effectively in the design, production, and sale, including distribution, of gray iron municipal castings.
E. The divestiture must be accomplished in a manner that satisfies the United States, in its sole discretion, that none of the terms of any agreement between Acquirer and Defendants gives Defendants the ability unreasonably to raise Acquirer's costs, to lower Acquirer's efficiency, or otherwise interfere in the ability of Acquirer to compete effectively in the design, production, and sale, including distribution, of gray iron municipal castings.
F. In the event Defendants are attempting to divest the Divestiture Assets to an Acquirer other than D&L Foundry, Defendants promptly must make known, by usual and customary means, the availability of the Divestiture Assets. Defendants must inform any person making an inquiry relating to a possible purchase of the Divestiture Assets that the Divestiture Assets are being divested in accordance with this Final Judgment and must provide that person with a copy of this Final Judgment. Defendants must offer to furnish to all prospective Acquirers, subject to customary confidentiality assurances, all information and documents relating to the Divestiture Assets that are customarily provided in a due diligence process;
G. Defendants must provide prospective Acquirers with (1) access to make inspections of the Divestiture Assets; (2) access to permitting documents and information relating to the Divestiture Assets; and (3) access to all financial, operational, or other documents and information relating to the Divestiture Assets that would customarily be provided as part of a due diligence process. Defendants also must disclose all encumbrances on any part of the Divestiture Assets, including on intangible property.
H. Defendants must warrant to Acquirer that (1) the Divestiture Assets will be operable and without material defect on the date of their transfer to Acquirer; (2) there are no material defects in the permits relating to the operability of the Divestiture Assets; and (3) Defendants have disclosed all encumbrances on any part of the Divestiture Assets, including on intangible property. Following the sale of the Divestiture Assets, Defendants must not undertake, directly or indirectly, challenges to the permits relating to the operation of the Divestiture Assets.
I. Defendants must use best efforts to assist Acquirer to obtain all necessary licenses, registrations, and permits to design, produce, and sell gray iron municipal castings using the Divestiture Patterns. Until Acquirer obtains the necessary licenses, registrations, and permits for the Divestiture Patterns, Defendants must provide Acquirer with the benefit of Defendants' licenses, registrations, and permits to the full extent permissible by law.
J. If any term of an agreement between Defendants and Acquirer, including an agreement to effectuate the divestiture required by this Final Judgment, varies from a term of this Final Judgment, to
A. If Defendants have not divested the Divestiture Assets within the period specified in Paragraph IV.A, Defendants must immediately notify the United States of that fact in writing. Upon application of the United States, which Defendants may not oppose, the Court will appoint a divestiture trustee selected by the United States and approved by the Court to effect the divestiture of the Divestiture Assets.
B. After the appointment of a divestiture trustee by the Court, only the divestiture trustee will have the right to sell the Divestiture Assets. The divestiture trustee will have the power and authority to accomplish the divestiture to an Acquirer acceptable to the United States, in its sole discretion, at a price and on terms obtainable through reasonable effort by the divestiture trustee, subject to the provisions of Sections IV, V, and VI of this Final Judgment, and will have other powers as the Court deems appropriate. The divestiture trustee must sell the Divestiture Assets as quickly as possible.
C. Defendants may not object to a sale by the divestiture trustee on any ground other than malfeasance by the divestiture trustee. Objections by Defendants must be conveyed in writing to the United States and the divestiture trustee within ten calendar days after the divestiture trustee has provided the notice of proposed divestiture required by Section VI.
D. The divestiture trustee will serve at the cost and expense of Defendants pursuant to a written agreement, on terms and conditions, including confidentiality requirements and conflict of interest certifications, approved by the United States in its sole discretion.
E. The divestiture trustee may hire at the cost and expense of Defendants any agents or consultants, including investment bankers, attorneys, and accountants, that are reasonably necessary in the divestiture trustee's judgment to assist with the divestiture trustee's duties. These agents or consultants will be accountable solely to the divestiture trustee and will serve on terms and conditions, including confidentiality requirements and conflict-of-interest certifications, approved by the United States in its sole discretion.
F. The compensation of the divestiture trustee and agents or consultants hired by the divestiture trustee must be reasonable in light of the value of the Divestiture Assets and based on a fee arrangement that provides the divestiture trustee with incentives based on the price and terms of the divestiture and the speed with which it is accomplished. If the divestiture trustee and Defendants are unable to reach agreement on the divestiture trustee's compensation or other terms and conditions of engagement within 14 calendar days of the appointment of the divestiture trustee by the Court, the United States, in its sole discretion, may take appropriate action, including by making a recommendation to the Court. Within three business days of hiring an agent or consultant, the divestiture trustee must provide written notice of the hiring and rate of compensation to Defendants and the United States.
G. The divestiture trustee must account for all monies derived from the sale of the Divestiture Assets sold by the divestiture trustee and all costs and expenses incurred. Within 30 calendar days of the Divestiture Date, the divestiture trustee must submit that accounting to the Court for approval. After approval by the Court of the divestiture trustee's accounting, including fees for unpaid services and those of agents or consultants hired by the divestiture trustee, all remaining money must be paid to Defendants and the trust will then be terminated.
H. Defendants must use best efforts to assist the divestiture trustee to accomplish the required divestiture. Subject to reasonable protection for trade secrets, other confidential research, development, or commercial information, or any applicable privileges, Defendants must provide the divestiture trustee and agents or consultants retained by the divestiture trustee with full and complete access to all personnel, books, records, and facilities of the Divestiture Assets. Defendants also must provide or develop financial and other information relevant to the Divestiture Assets that the divestiture trustee may reasonably request. Defendants must not take any action to interfere with or to impede the divestiture trustee's accomplishment of the divestiture.
I. The divestiture trustee must maintain complete records of all efforts made to sell the Divestiture Assets, including by filing monthly reports with the United States setting forth the divestiture trustee's efforts to accomplish the divestiture ordered by this Final Judgment. The reports must include the name, address, and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring any interest in the Divestiture Assets and must describe in detail each contact.
J. If the divestiture trustee has not accomplished the divestiture ordered by this Final Judgment within six months of appointment, the divestiture trustee must promptly provide the United States with a report setting forth: (1) The divestiture trustee's efforts to accomplish the required divestiture; (2) the reasons, in the divestiture trustee's judgment, why the required divestiture has not been accomplished; and (3) the divestiture trustee's recommendations for completing the divestiture. Following receipt of that report, the United States may make additional recommendations to the Court. The Court thereafter may enter such orders as it deems appropriate to carry out the purpose of this Final Judgment, which may include extending the trust and the term of the divestiture trustee's appointment by a period requested by the United States.
K. The divestiture trustee will serve until divestiture of all Divestiture Assets is completed or for a term otherwise ordered by the Court.
L. If the United States determines that the divestiture trustee is not acting diligently or in a reasonably cost-effective manner, the United States may recommend that the Court appoint a substitute divestiture trustee.
A. Within two business days following execution of a definitive agreement with an Acquirer other than D&L Foundry to divest the Divestiture Assets, Defendants or the divestiture trustee, whichever is then responsible for effecting the divestiture, must notify the United States of the proposed divestiture. If the divestiture trustee is responsible for completing the divestiture, the divestiture trustee also must notify Defendants. The notice must set forth the details of the proposed divestiture and list the name, address, and telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in the Divestiture Assets.
B. Within 15 calendar days of receipt by the United States of the notice required by Paragraph VI.A, the United States may request from Defendants, the proposed Acquirer, other third parties, or the divestiture trustee additional information concerning the proposed divestiture, the proposed Acquirer, and other prospective Acquirers. Defendants
C. Within 45 calendar days after receipt of the notice required by Paragraph VI.A or within 20 calendar days after the United States has been provided the additional information requested pursuant to Paragraph VI.B, whichever is later, the United States will provide written notice to Defendants and any divestiture trustee that states whether the United States, in its sole discretion, objects to the proposed Acquirer or any other aspect of the proposed divestiture. Without written notice that the United States does not object, a divestiture may not be consummated. If the United States provides written notice that it does not object, the divestiture may be consummated, subject only to Defendants' limited right to object to the sale under Paragraph V.C of this Final Judgment. Upon objection by Defendants pursuant to Paragraph V.C, a divestiture by the divestiture trustee may not be consummated unless approved by the Court.
D. No information or documents obtained pursuant to this Section may be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party, including grand-jury proceedings, for the purpose of evaluating a proposed Acquirer or securing compliance with this Final Judgment, or as otherwise required by law.
E. In the event of a request by a third party for disclosure of information under the Freedom of Information Act, 5 U.S.C. 552, the United States Department of Justice's Antitrust Division will act in accordance with that statute, and the Department of Justice regulations at 28 CFR part 16, including the provision on confidential commercial information, at 28 CFR 16.7. Persons submitting information to the Antitrust Division should designate the confidential commercial information portions of all applicable documents and information under 28 CFR 16.7. Designations of confidentiality expire ten years after submission, “unless the submitter requests and provides justification for a longer designation period.”
F. If at the time that a person furnishes information or documents to the United States pursuant to this Section, that person represents and identifies in writing information or documents for which a claim of protection may be asserted under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure, and marks each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,” the United States must give that person ten calendar days' notice before divulging the material in any legal proceeding (other than a grand-jury proceeding).
Defendants may not finance all or any part of Acquirer's purchase of all or part of the Divestiture Assets.
Defendants must take all steps necessary to comply with the Asset Preservation Stipulation and Order entered by the Court.
A. Within 20 calendar days of the filing of the Complaint in this matter, and every 30 calendar days thereafter until the divestiture required by this Final Judgment has been completed, each Defendant must deliver to the United States an affidavit, signed by each Defendant's Chief Financial Officer and General Counsel, describing in reasonable detail the fact and manner of that Defendant's compliance with this Final Judgment. The United States, in its sole discretion, may approve different signatories for the affidavits.
B. In the event Defendants are attempting to divest the Divestiture Assets to an Acquirer other than D&L Foundry, each affidavit required by Paragraph IX.A must include: (1) The name, address, and telephone number of each person who, during the preceding 30 calendar days, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, an interest in the Divestiture Assets and describe in detail each contact with such persons during that period; (2) a description of the efforts Defendants have taken to solicit buyers for and complete the sale of the Divestiture Assets and to provide required information to prospective Acquirers; and (3) a description of any limitations placed by Defendants on information provided to prospective Acquirers. Objection by the United States to information provided by Defendants to prospective Acquirers must be made within 14 calendar days of receipt of the affidavit, except that the United States may object at any time if the information set forth in the affidavit is not true or complete.
C. Defendants must keep all records of any efforts made to divest the Divestiture Assets until one year after the Divestiture Date.
D. Within 20 calendar days of the filing of the Complaint in this matter, each Defendant must deliver to the United States an affidavit signed by that Defendant's Chief Financial Officer and General Counsel, that describes in reasonable detail all actions that Defendant has taken and all steps that Defendant has implemented on an ongoing basis to comply with Section VIII of this Final Judgment. The United States, in its sole discretion, may approve different signatories for the affidavits.
E. If a Defendant makes any changes to the actions and steps described in affidavits provided pursuant to Paragraph IX.D., the Defendant must, within 15 calendar days after any change is implemented, deliver to the United States an affidavit describing those changes.
F. Defendants must keep all records of any efforts made to comply with Section VIII until one year after the Divestiture Date.
A. For the purposes of determining or securing compliance with this Final Judgment or of related orders such as the Asset Preservation Stipulation and Order or of determining whether this Final Judgment should be modified or vacated, upon written request of an authorized representative of the Assistant Attorney General for the Antitrust Division, and reasonable notice to Defendants, Defendants must permit, from time to time and subject to legally recognized privileges, authorized representatives, including agents retained by the United States:
1. To have access during Defendants' office hours to inspect and copy, or at the option of the United States, to require Defendants to provide electronic copies of all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of Defendants relating to any matters contained in this Final Judgment; and
2. to interview, either informally or on the record, Defendants' officers, employees, or agents, who may have their individual counsel present, relating to any matters contained in this Final Judgment. The interviews must be subject to the reasonable convenience of the interviewee and without restraint or interference by Defendants.
B. Upon the written request of an authorized representative of the
C. No information or documents obtained pursuant to this Section may be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party, including grand jury proceedings, for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
D. In the event of a request by a third party for disclosure of information under the Freedom of Information Act, 5 U.S.C. 552, the Antitrust Division will act in accordance with that statute, and the Department of Justice regulations at 28 CFR part 16, including the provision on confidential commercial information, at 28 CFR 16.7. Defendants submitting information to the Antitrust Division should designate the confidential commercial information portions of all applicable documents and information under 28 CFR 16.7. Designations of confidentiality expire ten years after submission, “unless the submitter requests and provides justification for a longer designation period.”
E. If at the time that Defendants furnish information or documents to the United States pursuant to this Section, Defendants represent and identify in writing information or documents for which a claim of protection may be asserted under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure, and Defendants mark each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,” the United States must give Defendants ten calendar days' notice before divulging the material in any legal proceeding (other than a grand jury proceeding).
Defendants may not reacquire any part of or any interest in the Divestiture Assets during the term of this Final Judgment without prior authorization of the United States.
The Court retains jurisdiction to enable any party to this Final Judgment to apply to the Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions.
A. The United States retains and reserves all rights to enforce the provisions of this Final Judgment, including the right to seek an order of contempt from the Court. Defendants agree that in a civil contempt action, a motion to show cause, or a similar action brought by the United States relating to an alleged violation of this Final Judgment, the United States may establish a violation of this Final Judgment and the appropriateness of a remedy therefor by a preponderance of the evidence, and Defendants waive any argument that a different standard of proof should apply.
B. This Final Judgment should be interpreted to give full effect to the procompetitive purposes of the antitrust laws and to restore the competition the United States alleges was harmed by the challenged conduct. Defendants agree that they may be held in contempt of, and that the Court may enforce, any provision of this Final Judgment that, as interpreted by the Court in light of these procompetitive principles and applying ordinary tools of interpretation, is stated specifically and in reasonable detail, whether or not it is clear and unambiguous on its face. In any such interpretation, the terms of this Final Judgment should not be construed against either party as the drafter.
C. In an enforcement proceeding in which the Court finds that Defendants have violated this Final Judgment, the United States may apply to the Court for an extension of this Final Judgment, together with other relief that may be appropriate. In connection with a successful effort by the United States to enforce this Final Judgment against a Defendant, whether litigated or resolved before litigation, that Defendant agrees to reimburse the United States for the fees and expenses of its attorneys, as well as all other costs including experts' fees, incurred in connection with that effort to enforce this Final Judgment, including in the investigation of the potential violation.
D. For a period of four years following the expiration of this Final Judgment, if the United States has evidence that a Defendant violated this Final Judgment before it expired, the United States may file an action against that Defendant in this Court requesting that the Court order: (1) Defendant to comply with the terms of this Final Judgment for an additional term of at least four years following the filing of the enforcement action; (2) all appropriate contempt remedies; (3) additional relief needed to ensure the Defendant complies with the terms of this Final Judgment; and (4) fees or expenses as called for by this Section.
Unless the Court grants an extension, this Final Judgment will expire 10 years from the date of its entry, except that after five years from the date of its entry, this Final Judgment may be terminated upon notice by the United States to the Court and Defendants that the divestiture has been completed and continuation of this Final Judgment is no longer necessary or in the public interest.
Entry of this Final Judgment is in the public interest. The parties have complied with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16, including by making available to the public copies of this Final Judgment and the Competitive Impact Statement, public comments thereon, and any response to comments by the United States. Based upon the record before the Court, which includes the Competitive Impact Statement and, if applicable, any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest.
In accordance with the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h) (the “APPA” or “Tunney Act”), the United States of America files this Competitive Impact Statement relating to the proposed Final Judgment filed in this civil antitrust proceeding.
On March 9, 2021, Defendant Neenah Enterprises, Inc. (“NEI”) entered into a binding agreement with Defendant U.S. Holdings, Inc. to acquire substantially all of the assets of its wholly-owned subsidiary U.S. Foundry and Manufacturing Corporation (“US Foundry”) for approximately $110 million. The United States filed a civil antitrust Complaint on October 14, 2021 seeking to enjoin the proposed transaction. The Complaint alleges that the likely effect of this transaction would be to substantially lessen competition in the design, production, and sale of gray iron municipal castings in Alabama, Florida, Georgia, Indiana, Maryland, New Jersey, New York, North Carolina, South Carolina, Tennessee, and Virginia (the “overlap states”) in violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
At the same time the Complaint was filed, the United States filed a proposed Final Judgment and an Asset Preservation Stipulation and Order (“Stipulation and Order”), which are designed to remedy the loss of competition alleged in the Complaint.
Under the proposed Final Judgment, which is explained more fully below, Defendants are required to divest over 500 patterns or molds used to produce gray iron municipal castings sold in the overlap states (“Divestiture Patterns”), along with all drawings, measurements, specifications, licenses, permits, certifications, and approvals relating to or used in connection with the Divestiture Patterns. Under the terms of the Stipulation and Order, Defendants must take certain steps to ensure that, until final delivery to an acquirer, the Divestiture Patterns are maintained in operable condition so they can be used by the acquirer as part of a viable, ongoing business of the design, production, and sale, including distribution, of gray iron municipal castings.
The United States and Defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA. Entry of the proposed Final Judgment will terminate this action, except that the Court will retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations thereof.
NEI and US Foundry are U.S. corporations based in Neenah, Wisconsin, and Medley, Florida, respectively, that each own and operate iron casting foundries that design, produce, and sell gray iron municipal castings for several purposes. US Foundry is a wholly-owned subsidiary of Defendant U.S. Holdings, Inc. NEI had 2020 revenues of $343.3 million, of which approximately $152 million was derived from gray iron municipal castings. US Foundry had 2020 revenues of approximately $90 million, of which approximately $73 million was derived from gray iron municipal castings. Gray iron municipal castings are customized molded iron products produced at iron foundries and include products such as manhole covers and frames, drainage grates, inlets, and tree grates. These castings include manhole covers and frames used to access subterranean areas, and various grates and drains used to direct water in roadway, parking, and industrial areas. Pursuant to a Transaction Agreement dated March 9, 2021, NEI intends to acquire all of US Foundry's gray iron municipal castings business for approximately $110 million.
The Complaint alleges that the combination of NEI and US Foundry will lead to anticompetitive effects in the market for the design, production, and sale of gray iron municipal castings in the overlap states.
The Complaint alleges that the sale of gray iron municipal castings constitutes a line of commerce within the meaning of Section 7 of the Clayton Act, 15 U.S.C. 18. Gray iron municipal castings are customized to a purchaser's specifications for the physical characteristics of these products, including strength, width, length, and any distinguishing marks, such as municipal logos. Customer specifications are used by the manufacturer to make a reusable pattern that is an exact replica of the final product. During the casting process, reusable patterns are pressed into a sand mold box to create an impression in the sand. After the pattern is removed, molten iron is poured into the sand mold to create the casting. The casting is then removed, cooled, and finished by shot-blasting or other machining before being shipped to the customer.
Gray iron municipal castings are used most often in construction and infrastructure projects, with smaller volumes used for maintenance or repair purposes. A state department of transportation (“DOT”), county, or municipality typically determines the specifications of the gray iron municipal castings that can be used in projects within its authority. Municipalities and counties often adopt the relevant DOT's technical specifications, and commercial projects may choose to adopt DOT specifications even when not required. A DOT, county, or municipality also may have a qualified product list that identifies approved patterns and manufacturers for specific gray iron municipal castings.
As alleged in the Complaint, there are no functional or economic substitutes for gray iron municipal castings, which are customized according to unique specifications designed to meet the customer's goals of subterranean access or water drainage as part of an integrated and possibly complex public infrastructure project. For example, a state DOT will specify the exact dimensions and structural requirements of each casting for all DOT construction products. Other customers, such as counties or municipalities within a state, will often use state DOT specifications for size and structural integrity, but will further customize their gray iron municipal castings by including the town name or other distinguishing marks on the casting or by specifying custom shapes for lifting holes. These customer-specified requirements mean that gray iron municipal castings made for a particular project or municipality typically cannot be used on other projects or in other areas.
The Complaint alleges that, because there are no reasonable substitutes for gray iron municipal castings, a hypothetical monopolist of gray iron municipal castings could profitably impose a small but significant increase in price without losing significant sales to alternative products. The sale of gray iron municipal castings therefore constitutes a line of commerce within the meaning of Section 7 of the Clayton Act, 15 U.S.C. 18
The Complaint alleges that both NEI and US Foundry have committed significant capital to develop specific patterns for gray iron municipal castings used by customers in the overlap states and have made substantial investments to develop an efficient distribution network in those states for their gray iron municipal castings. Custom-designed castings mean that buyers cannot successfully use gray iron municipal castings designed for projects outside the overlap states for projects within the overlap states. As a result, customers cannot buy gray iron municipal castings designed for projects outside the overlap states to avoid a higher price charged by foundries designing castings for projects within the overlap states.
As alleged in the Complaint, a hypothetical monopolist of gray iron municipal castings sold to customers in the overlap states could profitably impose a small but significant increase in the price of gray iron municipal castings without losing significant sales to product substitution or arbitrage. The sale of gray iron municipal castings to customers in the overlap states therefore constitutes a relevant market within the meaning of Section 7 of the Clayton Act, 15 U.S.C. 18.
The Complaint alleges that NEI and US Foundry compete for sales of gray iron municipal castings primarily on the basis of price, quality, and speed of delivery. This competition has resulted in lower prices, higher quality, and shorter delivery times. This competition has been particularly important to customers in the overlap states where NEI and US Foundry compete today.
In the overlap states, NEI and US Foundry have developed hundreds of approved patterns and are two of only three firms with a significant presence in the design, production, and sale of gray iron municipal castings. Both NEI and US Foundry consistently bid on customer contracts in the overlap states, and customers use the competition between the two firms to obtain lower prices, higher quality, and shorter delivery times.
While there are other firms that occasionally compete for contracts in the overlap states, these fringe competitors typically have a small presence and are unlikely to replace the competition lost by the proposed transaction. Other than NEI, US Foundry, and one other firm, smaller competitors have not invested the time and money to develop, seek approval for, and produce the hundreds of patterns necessary to compete consistently for projects in the overlap states nor have they invested in distribution for castings within those states. Thus, the transaction would reduce the number of significant competitors in the overlap states from three to two and leave only one other significant competitor as an alternative to the merged firm. Faced with only one significant alternate supplier, the merged firm likely would have the incentive and ability to increase prices, lower quality, and increase delivery times in the overlap states.
The Complaint alleges that sufficient, timely entry of additional competitors into the market for gray iron municipal castings in the overlap states is unlikely. A new entrant would have to invest substantial capital equipment and human resources in order to build new production facilities, sales infrastructure, and distribution networks for gray iron municipal castings. To be competitively viable, a new entrant would need to construct a foundry or establish production lines at an existing foundry capable of manufacturing the castings, as well as establish a system of regional distribution. This process would be capital intensive and likely take years to complete.
Similarly, a firm currently making gray iron municipal castings for use outside the overlap states is unlikely to expand into the overlap states. This is because such an entrant would not have proven or approved designs and patterns or established local distribution. It is highly unlikely that new entrants or firms thinking of geographic expansion would invest the time and money needed to create a portfolio of new, as-yet unapproved designs and patterns of sufficient scale to compete in the overlap states on the speculative possibility of attracting enough new business to justify the investment.
As a result, entry or expansion into the market for gray iron municipal castings in the overlap states would not be timely, likely, or sufficient to defeat the anticompetitive effects likely to result from the combination of NEI and US Foundry.
The relief required by the proposed Final Judgment will remedy the loss of competition alleged in the Complaint by the timely establishment of an independent and economically viable competitor in the market for the design, production, and sale, including distribution, of gray iron municipal castings in the overlap states. Paragraph IV.A of the proposed Final Judgment requires Defendants, within 30 calendar days after the entry of the Stipulation and Order by the Court, to divest the Divestiture Assets to D&L Foundry, Inc., or an alternative acquirer acceptable to
The Divestiture Assets, which are defined in Paragraph II.G of the proposed Final Judgment, consist of over 500 gray iron municipal casting patterns currently owned by NEI or US Foundry and identified in Appendix A of the proposed Final Judgment (“Divestiture Patterns”). Along with the Divestiture Patterns themselves, the Divestiture Assets also include all drawings, measurements, specifications, licenses, permits, certifications, approvals, consents, registrations, waivers, authorizations, and pending applications or renewals for the same, relating to or used in connection with the Divestiture Patterns.
The Divestiture Patterns include a set of all patterns owned both by NEI and US Foundry and used by either NEI or US Foundry to produce gray iron municipal castings that generated sales of 50 or more castings by either NEI or US Foundry in the overlap states between 2019 and 2020. The Divestiture Assets will provide a qualified acquirer with all the assets, including the patterns and related documentation, needed to quickly and effectively compete at scale in the design, production, and sale of gray iron municipal castings in the overlap states.
Defendants are required to use best efforts to act expeditiously (Paragraph IV.B), to divest the Divestiture Assets in such a way as to satisfy the United States, in its sole discretion, that the Divestiture Assets will be used as a part of a viable ongoing business for the design, production, and sale, including distribution, of gray iron municipal castings in the overlap states and will remedy the competitive harm alleged in the Complaint (Paragraph IV.C). The divestiture must be made to an acquirer that, in the United States' sole judgment, has the intent and capability to compete effectively in the design, production, and sale, including distribution, of gray iron municipal castings in the overlap states (Paragraph IV.D) and that none of the terms of any agreement between acquirer and Defendants gives Defendants the ability to interfere in the acquirer's efforts to compete effectively in the design, production, and sale, including distribution, of gray iron municipal castings (Paragraph IV.E). If Defendants attempt to divest to an acquirer other than D&L Foundry, Paragraphs IV.F and IV.G require Defendants to make certain information available to other prospective acquirers, including a copy of the proposed Final Judgment. The United States has the sole discretion to approve an alternative acquirer (Paragraph IV.A).
Paragraph IV.H of the proposed Final Judgment ensures that the Divestiture Assets are unencumbered and operable on the date of their transfer to the acquirer. Paragraph IV.I requires that Defendants use best efforts to assist acquirer to obtain all necessary licenses, registrations, and permits to design, produce, and sell gray iron municipal castings using the Divestiture Patterns. Until the acquirer obtains the necessary licenses, registrations, and permits for the Divestiture Patterns, Defendants must provide the acquirer with the benefit of Defendant's licenses, registrations, and permits to the full extent permissible by law. Paragraph IV.J ensures that the terms of the proposed Final Judgment supersede any terms of agreement between Defendants and the acquirer that are inconsistent with the proposed Final Judgment.
If Defendants do not accomplish the divestiture within the period prescribed in Paragraph IV.A of the proposed Final Judgment, Section V of the proposed Final Judgment provides that the Court will appoint a divestiture trustee selected by the United States to affect the divestiture. If a divestiture trustee is appointed, the proposed Final Judgment provides that Defendants must pay all costs and expenses of the trustee. The divestiture trustee's compensation must be structured so as to provide an incentive for the trustee based on the price and terms obtained and the speed with which the divestiture is accomplished. After the divestiture trustee's appointment becomes effective, the trustee must provide monthly reports to the United States setting forth his or her efforts to accomplish the divestiture. If the divestiture has not been accomplished within six months of the divestiture trustee's appointment, the United States may make recommendations to the Court, which will enter such orders as appropriate, in order to carry out the purpose of the Final Judgment, including by extending the trust or the term of the divestiture trustee's appointment by a period requested by the United States.
The proposed Final Judgment also contains provisions designed to promote compliance with and make enforcement of the Final Judgment as effective as possible. Paragraph XIII.A provides that the United States retains and reserves all rights to enforce the Final Judgment, including the right to seek an order of contempt from the Court. Under the terms of this paragraph, Defendants have agreed that in any civil contempt action, any motion to show cause, or any similar action brought by the United States regarding an alleged violation of the Final Judgment, the United States may establish the violation and the appropriateness of any remedy by a preponderance of the evidence and that Defendants have waived any argument that a different standard of proof should apply. This provision aligns the standard for compliance with the Final Judgment with the standard of proof that applies to the underlying offense that the Final Judgment addresses.
Paragraph XIII.B provides additional clarification regarding the interpretation of the provisions of the proposed Final Judgment. The proposed Final Judgment is intended to remedy the loss of competition the United States alleges would otherwise be harmed by the transaction. Defendants agree that they will abide by the proposed Final Judgment and that they may be held in contempt of the Court for failing to comply with any provision of the proposed Final Judgment that is stated specifically and in reasonable detail, as interpreted in light of this procompetitive purpose.
Paragraph XIII.C provides that if the Court finds in an enforcement proceeding that a Defendant has violated the Final Judgment, the United States may apply to the Court for an extension of the Final Judgment, together with such other relief as may be appropriate. In addition, to compensate American taxpayers for any costs associated with investigating and enforcing violations of the Final Judgment, Paragraph XIII.C provides that, in any successful effort by the United States to enforce the Final Judgment against a Defendant, whether litigated or resolved before litigation, the Defendant must reimburse the United States for attorneys' fees, experts' fees, and other costs incurred in connection with any effort to enforce the Final Judgment, including the investigation of the potential violation.
Paragraph XIII.D states that the United States may file an action against a Defendant for violating the Final Judgment for up to four years after the Final Judgment has expired or been terminated. This provision is meant to address circumstances such as when evidence that a violation of the Final
Finally, Section XIV of the proposed Final Judgment provides that the Final Judgment will expire 10 years from the date of its entry, except that after five years from the date of its entry, the Final Judgment may be terminated upon notice by the United States to the Court and Defendants that the divestiture has been completed and that continuation of the Final Judgment is no longer necessary or in the public interest.
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment neither impairs nor assists the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no prima facie effect in any subsequent private lawsuit that may be brought against Defendants.
The United States and Defendants have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry upon the Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least 60 days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within 60 days of the date of publication of this Competitive Impact Statement in the
Written comments should be submitted in English to: Jay Owen, Acting Chief, Defense, Industrials, and Aerospace Section, Antitrust Division, U.S. Department of Justice, 450 Fifth Street NW, Suite 8700, Washington, DC 20530.
The proposed Final Judgment provides that the Court retains jurisdiction over this action, and the parties may apply to the Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgment.
As an alternative to the proposed Final Judgment, the United States considered a full trial on the merits against Defendants. The United States could have continued the litigation and sought preliminary and permanent injunctions against NEI's acquisition of US Foundry. The United States is satisfied, however, that the relief required by the proposed Final Judgment will remedy the anticompetitive effects alleged in the Complaint, preserving competition for the design, production, and sale of gray iron municipal castings in those markets. Thus, the proposed Final Judgment achieves all or substantially all of the relief the United States would have obtained through litigation but avoids the time, expense, and uncertainty of a full trial on the merits.
Under the Clayton Act and APPA, proposed Final Judgments or “consent decrees” in antitrust cases brought by the United States are subject to a 60-day comment period, after which the Court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. 16(e)(1). In making that determination, the Court, in accordance with the statute as amended in 2004, is required to consider:
(A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
As the U.S. Court of Appeals for the District of Columbia Circuit has held, under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations in the government's complaint, whether the proposed Final Judgment is sufficiently clear, whether its enforcement mechanisms are sufficient, and whether it may positively harm third parties.
The United States' predictions about the efficacy of the remedy are to be afforded deference by the Court.
Moreover, the Court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its complaint, and does not authorize the Court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
In its 2004 amendments to the APPA, Congress made clear its intent to preserve the practical benefits of using judgments proposed by the United States in antitrust enforcement, Public Law 108-237 § 221, and added the unambiguous instruction that “[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.” 15 U.S.C. 16(e)(2);
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
Dated: October 14, 2021.
Respectfully submitted,
For Plaintiff
United States of America:
Email:
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
Office of Justice Programs, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Office of Justice Programs, Office of Justice Programs, will be submitting 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 30 days until November 24, 2021.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Jennifer Yeh, (202) 532-5929, Acting Deputy Director, Office of Audit, Assessment, and Management, Office of Justice Programs, Department of Justice, 810 7th Street NW, Washington, DC 20530.
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)
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
Drug Enforcement Administration, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting 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 30 days until November 24, 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.
National Endowment for the Arts, National Foundation on the Arts and the Humanities.
Notice.
The National Endowment for the Arts (NEA), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the NEA is soliciting comments concerning the proposed information collection on arts participation in the U.S. A copy of the current information collection request can be obtained by contacting the office listed below in the address section of this notice.
Written comments must be submitted to the office listed in the address section below within 60 days from the date of this publication in the
Send comments to Sunil Iyengar, National Endowment for the Arts, via email (
The NEA is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form N-5 (17 CFR 239.24 and 274.5) is the form used by small business investment companies (“SBICs”) to register their securities under the Securities Act of 1933 (15 U.S.C. 77a
The Commission did not receive any filings on Form N 5 in the last three years (and in the three years before that, received only one Form N-5 filing). Nevertheless, for purposes of this PRA, we conservatively estimate that at least one Form N-5 will be filed in the next three years, which translates to about 0.333 filings on Form N 5 per year. The currently approved internal burden of Form N 5 is 352 hours per response. We continue to believe this estimate for Form N- 5's internal hour burden is appropriate. Therefore, the number of currently approved aggregate burden hours, when calculated using the current estimate for number of filings, is about 117 internal hours per year. The currently approved external cost burden of Form N-5 is $10,100 per filing. The requested external cost burden for filing one Form N-5 would be $12,524 per year. This estimated burden is based on the estimated wage rate of $496/hour, for 25.25 hours, for outside legal services to complete the form and provide the required hyperlinks.
Estimates of average burden hours and costs are made solely for the purposes of the Paperwork Reduction Act, and are not derived from a comprehensive or even representative survey or study of the costs of Commission rules and forms. Compliance with the collection of information requirements of Form N-5 is mandatory. Responses to the collection of information 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 unless it displays a currently valid OMB 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 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:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Under Rule 17f-1(b) under the Exchange Act, approximately 10,000 entities in the securities industry are registered in the Lost and Stolen Securities Program (“Program”). Registration fulfills a statutory requirement that entities report and inquire about missing, lost, counterfeit, or stolen securities. Registration also allows entities in the securities industry to gain access to a confidential database that stores information for the Program.
The Commission staff estimates that 10 new entities will register in the Program each year. The staff estimates that the average number of hours necessary to comply with Rule 17f-1(b) is one-half hour. Accordingly, the staff estimates that total annual burden for all participants is 5 hours (10 × one-half hour). The Commission staff estimates that compliance staff work at subject entities results in an internal cost of compliance, at an estimated hourly wage of $283, of $141.50 per year per entity (.5 hours × $283 per hour = $141.50 per year). Therefore, the aggregate annual internal cost of compliance is approximately $1,415 ($141.50 × 10 = $1,415).
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed 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 of this publication.
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:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 1-Z (17 CFR 239.94) is used to report terminated or completed offerings or to suspend the duty to file ongoing reports under Regulation A, an exemption from registration under the Securities Act of 1933 (15 U.S.C 77a
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.
The public may view background documentation for this information collection at the following website:
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 Wednesday, November 3, 2021 at 10:00 a.m.
The meeting will be conducted by remote means. Members of the public
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 20, 2021, the Commission issued notice of the meeting (Release No. 34-93391), 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 potential recommendations.
For further information, please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form F-X (17 CFR 239.42) is used to appoint an agent for service of process by Canadian issuers registering securities on Forms F-7, F-8, F-9 or F-10 under the Securities Act of 1933 (15 U.S.C. 77a
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.
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 (44 U.S.C. 3501
Rule 12b-1 under the Investment Company Act of 1940 (17 CFR 270.12b-1) permits a registered open-end investment company (“fund”) to bear expenses associated with the distribution of its shares, provided that the fund complies with certain requirements, including, among other things, that it adopt a written plan (“rule 12b-1 plan”) and that it preserves in writing any agreements relating to the rule 12b-1 plan. The rule in part requires that (i) the adoption or material amendment of a rule 12b-1 plan be approved by the fund's directors, including its independent directors, and, in certain circumstances, its shareholders; (ii) the board review quarterly reports of amounts spent under the rule 12b-1 plan; and (iii) the board, including the independent directors, consider continuation of the rule 12b-1 plan and any related agreements at least annually. Rule 12b-1 also requires funds relying on the rule to preserve for six years, the first two years in an easily accessible place, copies of the rule 12b-1 plan and any related agreements and reports, as well as minutes of board meetings that describe the factors considered and the basis for adopting or continuing a rule 12b-1 plan.
Rule 12b-1 also prohibits funds from paying for distribution of fund shares with brokerage commissions on their portfolio transactions. The rule requires funds that use broker-dealers that sell their shares to also execute their portfolio securities transactions, to implement policies and procedures reasonably designed to prevent: (i) The persons responsible for selecting broker-dealers to effect transactions in fund portfolio securities from taking into account broker-dealers' promotional or sales efforts when making those decisions; and (ii) a fund, its adviser, or its principal underwriter, from entering into any agreement under which the fund directs brokerage transactions or revenue generated by those transactions to a broker-dealer to pay for distribution of the fund's (or any other fund's) shares.
The board and shareholder approval requirements of rule 12b-1 are designed to ensure that fund shareholders and directors receive adequate information to evaluate and approve a rule 12b-1 plan and, thus, are necessary for investor protection. The requirement of quarterly reporting to the board is designed to ensure that the rule 12b-1 plan continues to benefit the fund and its shareholders. The recordkeeping requirements of the rule are necessary to enable Commission staff to oversee compliance with the rule. The requirement that funds or their advisers implement, and fund boards approve, policies and procedures in order to prevent persons charged with allocating
Commission staff estimates that there are approximately 6,358 funds (for purposes of this estimate, registered open-end investment companies or series thereof) that have at least one share class subject to a rule 12b-1 plan and approximately 454 fund families with common boards of directors that have at least one fund with a 12b-1 plan. The Commission further estimates that the annual hour burden for complying with the rule is 425 hours for each fund family with a portfolio that has a rule 12b-1 plan. We therefore estimate that the total hourly burden per year for all funds to comply with current information collection requirements under rule 12b-1 is 192,950 hours. Commission staff estimates that approximately three funds per year prepare a proxy in connection with the adoption or material amendment of a rule 12b-1 plan. The staff further estimates that the cost of each fund's proxy is $30,000. Thus, the total annual cost burden of rule 12b-1 to the fund industry is $90,000.
Estimates of average burden hours and costs are made solely for purposes of the Paperwork Reduction Act and are not derived from a comprehensive or even representative survey or study of the costs of Commission rules and forms. The collections of information required by rule 12b-1 are necessary to obtain the benefits of the rule. Notices to the Commission 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 unless it displays a currently valid OMB 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 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:
All submissions should refer to File Number 270-188. This file number should be included on the subject line if email is used. The Commission will post all comments on the Commission's internet website (
On August 18, 2021, MEMX LLC (“MEMX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change and any comments. Accordingly, pursuant to Section 19(b)(2) of the 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
Regulation G (17 CFR 244.100-244.102) under the Securities Exchange Act of 1934 (the “Exchange Act”) (15 U.S.C. 78a
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.
The public may view background documentation for this information collection at the following website:
Securities and Exchange Commission (“Commission”).
Temporary order and notice of application for a permanent order under section 9(c) of the Investment Company Act of 1940 (“Act”).
Applicants have received a temporary order (“Temporary Order”) exempting them from section 9(a) of the Act, with respect to a guilty plea entered on October 19, 2021 (“Guilty Plea”), by Credit Suisse Securities (Europe) Limited (the “Pleading Entity” or “CSSEL”) in the United States District Court for the Eastern District of New York (the “District Court”) in connection with a plea agreement (“Plea Agreement”) between the Pleading Entity and the United States Department of Justice (“DOJ”), until the Commission takes final action on an application for a permanent order (the “Permanent Order,” and with the Temporary Order, the “Orders”). Applicants also have applied for a Permanent Order.
CSSEL, Credit Suisse Asset Management, LLC (“CSAM”), Credit Suisse Asset Management Limited (“CSAML”), Credit Suisse Securities (USA) LLC (“CSSU,” and together with CSSEL, CSAM and CSAML, the “Applicants”) and Credit Suisse Group AG (“CS Group”).
The application was filed on October 19, 2021.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by emailing the Commission's Secretary at
The Commission:
Kay M. Vobis, Senior Counsel, at (202) 551-6728 or Trace W. Rakestraw, Branch Chief, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a temporary order and a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or an applicant using the Company name box, at
1. The Pleading Entity is a limited liability company, incorporated in the United Kingdom and authorized under the Financial Services and Markets Act 2000, as amended. The Pleading Entity is an indirect wholly-owned subsidiary of CSAG (defined below). Its principal activity is acting as a broker dealer.
2. CSAM, a limited liability company formed under Delaware law, is registered as an investment adviser under the Investment Advisers Act of 1940 (the “Advisers Act”). CSAM serves as investment adviser (either as primary investment adviser or as investment sub-adviser) to each Fund
3. CSAML, a corporation formed under the laws of the United Kingdom, is registered as an investment adviser under the Advisers Act. CSAML serves as investment sub-adviser to the Fund listed in Part 2 of Appendix A of the application.
4. CSSU, a limited liability company formed under Delaware law, is registered as a broker-dealer under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and as an investment adviser under the Advisers Act. CSSU serves as principal underwriter to each Open-End Fund listed in Part 3 of Appendix A of the application.
5. Each of the above Applicants is either a direct or indirect wholly owned subsidiary of CS Group (CS Group, together with its wholly-owned subsidiaries and affiliated entities, “Credit Suisse”). Credit Suisse AG (“CSAG”) is a wholly owned subsidiary, and the principal operating subsidiary, of CS Group, which operates as a holding company. Both CS Group and CSAG are corporations organized under the laws of Switzerland.
6. Currently, CSAM, CSAML and CSSU (together, the “Fund Servicing Applicants”), which are affiliates of the Pleading Entity, collectively serve as investment adviser or investment subadviser to investment companies
7. On October 19, 2021, the DOJ filed a criminal information (the “Information”) in the District Court charging the Pleading Entity with one count of conspiracy to commit wire fraud (18 U.S.C. 1349). According to the Statement of Facts that served as the basis for the Plea Agreement (the “Statement of Facts”) the Pleading Entity, through its employees, conspired to use U.S. wires and the U.S. financial system to defraud U.S. and international investors in connection with three financing transactions involving the Pleading Entity and Mozambican state-owned enterprises, as further described in the application (the “Financing Transactions”).
8. In connection with the Plea Agreement, the ultimate parent of the Pleading Entity, CS Group, entered into a Deferred Prosecution Agreement on October 19, 2021 (the “DPA”).
9. Pursuant to the Plea Agreement, the Pleading Entity entered the Guilty Plea on October 19, 2021 in the District Court to the charge set out in the Information. Applicants state that, according to the Plea Agreement, the Pleading Entity agrees, among other things, as follows: First, the Pleading Entity shall cooperate fully with the DOJ, Criminal Division, Money Laundering and Asset Recovery Section and Fraud Section, and the United States Attorney's Office for the Eastern District of New York (collectively, the “Offices”) in any and all matters relating to the conduct described in the Plea Agreement and the Statement of Facts and other conduct under investigation by the Offices or any other component of the DOJ at any time during the term of the DPA (the “Term”) until the later of the date upon which all investigations and prosecutions arising out of such conduct are concluded or the end of the Term. Second, at the request of the Offices, the Pleading Entity shall also cooperate fully with other domestic or foreign law enforcement and regulatory authorities and agencies, as well as the Multilateral Development Banks in any investigation of the Pleading Entity, CS Group, its affiliates, or any of its present or former officers, directors, employees, agents, and consultants, or any other party, in any and all matters relating to the conduct described in the Plea Agreement and the Statement of Facts and any other conduct under investigation by the Offices or any other component of the DOJ. Third, should the Pleading Entity learn during the Term of any evidence or allegations of conduct that may constitute a violation of the federal wire fraud statute had the conduct occurred within the jurisdiction of the United States, the Pleading Entity shall promptly report such evidence or allegation to the Offices. Fourth, the Pleading Entity agrees that any fine imposed by the District Court will be due and payable as specified in Paragraph 19 of the Plea Agreement, and that any restitution imposed by the District Court will be due and payable in accordance with the District Court's order. Finally, the Pleading Entity agrees to commit no further crimes and to work with Credit Suisse in fulfilling the obligations of Credit Suisse's DPA.
10. The Applicants expect that the District Court will enter a judgment against the Pleading Entity (the “Judgment”) that will require remedies that are materially the same as set forth in the Plea Agreement.
11. In the DPA, CS Group agreed to continue to cooperate fully with any ongoing DOJ or non-U.S. investigations of the conduct. CS Group also agreed to continue to make certain enhancements to its existing compliance program, and to make annual reports to the DOJ about those enhancements, as set out in Attachment C to the DPA, on an annual basis for three years.
12. On October 19, 2020, the SEC instituted cease-and-desist proceedings against GS Group concerning violations of the books and records and internal control provisions of the Foreign Corrupt Practices Act of 1977 and violations of the antifraud provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934 in connection with the Financing Transactions, as further described in the application (the “SEC Order”). The SEC Order includes findings that CS Group violated sections 17(a)(1), (2) and (3) of the Securities Act, sections 10(b), 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act and rule 10b-5 thereunder. The SEC Order orders CS Group to cease and desist from committing or causing any violations and any future violations of those provisions and orders CS Group to pay a civil money penalty of $65 million, disgorgement of $26,229,233 and prejudgment interest of $7,822,639.
13. CS Group and its affiliates have entered into settlement agreements with other U.S. and non-U.S. regulatory or enforcement agencies related to the Financing Transactions. These include an order issued by the U.K. Financial Conduct Authority on October 19, 2021 and a finding issued by Swiss Financial Market Supervisory Authority on October 19, 2021.
1. Section 9(a)(1) of the Act provides, in pertinent part, that a person may not serve or act as an investment adviser or depositor of any registered investment company or as principal underwriter for any Open-End Fund, UIT, or FACC, if such person within ten years has been convicted of any felony or misdemeanor, including those arising out of such person's conduct as a broker, dealer or bank. Section 2(a)(10) of the Act defines the term “convicted” to include a plea of guilty. Section 9(a)(3) of the Act extends the prohibitions of section 9(a)(1) to a company, any affiliated person of which has been disqualified under the provisions of section 9(a)(1). Section 2(a)(3) of the Act defines “affiliated person” to include, among others, any person directly or indirectly controlling, controlled by, or under common control with, the other person. The Pleading Entity is an Affiliated Person of each of the other Applicants within the meaning of section 2(a)(3) of the Act. Therefore, the Applicants state that the Plea Agreement would result in a disqualification of each Fund Servicing Applicant for ten years under section 9(a)(3) were they to act in any of the capacities listed in section 9(a), by effect of a conviction described in section 9(a)(1).
2. Section 9(c) of the Act provides that: “[t]he Commission shall by order grant [an] application [for relief from the prohibitions of subsection 9(a)], either unconditionally or on an appropriate temporary or other conditional basis, if it is established [i] that the prohibitions of subsection 9(a), as applied to such person, are unduly or disproportionately severe or [ii] that the conduct of such person has been such as not to make it against the public interest or the protection of investors to grant such application.” Applicants have filed an application pursuant to section 9(c) seeking a Temporary Order and a Permanent Order exempting the Fund Servicing Applicants and other Covered Persons from the disqualification provisions of section 9(a) of the Act.
3. Applicants believe they meet the standards for exemption specified in section 9(c). Applicants assert that (i) the conduct that served as the basis for the Plea Agreement, the DPA and the SEC Order (the “Conduct”) was limited and did not involve any of the Fund Servicing Applicants. The Conduct similarly did not involve any Fund with respect to which the Fund Servicing Applicants engage in Fund Servicing Activities, and none of such Funds ever participated in the offerings or transactions at issue or acquired the subject securities or loans in the secondary market;
4. Applicants represent that the Conduct did not involve any of Fund Servicing Applicants.
5. Applicants assert that, in light of the limited scope of the Conduct, it would be unduly and disproportionately severe to impose a section 9(a) disqualification on the Fund Servicing Applicants. Applicants assert that the conduct of the Applicants has not been such to make it against the public interest or the protection of investors to grant the exemption from section 9(a).
6. Applicants assert that neither the protection of investors nor the public interest would be served by permitting the section 9(a) disqualifications to apply to the Fund Servicing Applicants because those disqualifications would deprive the Funds they serve of the advisory or sub-advisory and underwriting services that shareholders expected the Funds would receive when they decided to invest in the Funds. Applicants also assert that the prohibitions of section 9(a) could operate to the financial detriment of the Funds and their shareholders, including by causing the Funds to spend time and resources to engage substitute advisers, subadvisers, and principal underwriters, which would be an unduly and disproportionately severe consequence particularly given that no Fund Servicing Applicants and none of their employees were involved in the Conduct and that the Conduct did not involve any of the Funds or Fund Servicing Activities.
7. Applicants assert that if the Fund Servicing Applicants were barred under section 9(a) from providing investment advisory and underwriting services to the Funds and were unable to obtain the requested exemption, the effect on their businesses and employees would be severe. Applicants state that the Fund Servicing Applicants have committed substantial capital and other resources to establishing expertise in advising and sub-advising Funds with a view to continuing and expanding this business. Similarly, Applicants represent that if CSSU were barred under section 9(a) from continuing to provide underwriting services to the Funds and were unable to obtain the requested exemption, the effect on its current business and employees would be significant. CSSU has committed substantial resources to establish expertise in underwriting the securities of the Funds that are Open-End Funds and to establish distribution arrangements for Open-End Fund shares. Applicants further state that prohibiting the Fund Servicing Applicants from engaging in Fund Servicing Activities would not only adversely affect their business, but would also adversely affect their employees who are involved in these activities.
8. Applicants represent that: (i) None of the current or former directors, officers or employees of Applicants (other than certain former personnel of the Pleading Entity who were not involved in any of the Fund Servicing Applicants' Fund Servicing Activities) engaged in the Conduct; (ii) no current or former director, officer, or employee of the Pleading Entity or any Covered Person who previously has been or who subsequently may be identified by the Pleading Entity or any U.S. or non-U.S. regulatory or enforcement agencies as having been responsible for the Conduct will be an officer, director, or employee of any Applicant, CS Group, CSAG, and of any Covered Person; (iii) such directors, officers, and employees and any other person who otherwise participated in the Conduct have had no, and will not have any future, involvement in the Covered Persons' activities in any capacity described in section 9(a) of the Act; and (iv) because the directors, officers and employees of Applicants (other than certain former personnel of the Pleading Entity who were not involved in any of the Fund Servicing Applicants' Fund Servicing Activities) did not engage in the Conduct, shareholders of the Funds were not affected any differently than if those Funds had received services from any other non-affiliated investment adviser or principal underwriter.
9. Applicants have agreed that none of CS Group, CSAG, the Applicants or any of the other Covered Persons will employ the former employees of the Pleading Entity or any other person who subsequently may be identified by the Pleading Entity or any U.S. or non-U.S. regulatory or enforcement agencies as having been responsible for the Conduct in any capacity without first making a further application to the Commission pursuant to section 9(c).
10. Applicants have also agreed that each of CS Group, CSAG, Applicants, and the Covered Persons will adopt and implement policies and procedures reasonably designed to ensure that it will comply with the terms and conditions of the Orders granted under section 9(c).
11. In addition, each of CS Group, CSAG, Applicants and the Covered Persons will comply in all material respects with the material terms and conditions of the Plea Agreement, the DPA and with the material terms of the SEC Order, and any other orders issued by, or settlements with, regulatory or
12. Applicants further state that Credit Suisse has undertaken certain other remedial measures, as described in greater detail in the application. These include three types of remedial measures in response to, or that bear on, this matter: (i) Those directly related to the Conduct or would have applied to the transactions in question; (ii) those implicating the broader risk management systems and controls surrounding the relevant business as a whole; and (iii) industry-wide and multilateral reforms designed to address one or the root causes of the issues that arose in connection with these transactions. In connection with the remedial measures, CS Group will submit to Commission staff (i) a remediation report as described in Section IV.F. of the application (the “Remediation Report”) and (ii) a multilateral remedies report, as described in Section IV.F. of the application (the “Multilateral Remedies Report”) within 30 days of each anniversary of the Permanent Order (until and including the third such anniversary).
13. As a result of the foregoing, the Applicants submit that absent relief, the prohibitions of section 9(a) would be unduly or disproportionately severe, and that the Conduct did not constitute conduct that would make it against the public interest or protection of investors to grant the exemption.
14. To provide further assurance that the exemptive relief being requested in the application would be consistent with the public interest and the protection of the investors, the Applicants agree that they will, as soon as reasonably practical, with respect to each of the Funds for which a Fund Servicing Applicant is the primary adviser, distribute to the boards of directors or trustees of the Funds (“Board”) written materials describing the circumstances that led to the Plea Agreement, as well as any effects on the Funds and the application.
15. The written materials will include an offer to discuss the materials at an in-person meeting with each Board for which Fund Servicing Applicants provide Fund Servicing Activities, including the directors who are not “interested persons” of the Funds as defined in section 2(a)(19) of the Act and their independent legal counsel as defined in rule 0-1(a)(6) under the Act, if any. With respect to each of the Funds for which a Fund Servicing Applicant is not the primary investment adviser, the relevant Fund Servicing Applicant will provide such materials to the Fund's primary investment adviser and offer to discuss the materials with such primary investment adviser. The Applicants undertake to provide the Boards with all information concerning the Plea Agreement and the application as necessary for those Funds to fulfill their disclosure and other obligations under the U.S. federal securities laws and will provide them a copy of the Judgment as entered by the District Court.
16. Certain of the Applicants and their affiliates have previously applied for exemptive orders under section 9(c) of the Act, as described in greater detail in the application.
Applicants agree that any order granted by the Commission pursuant to the application will be subject to the following conditions:
1. Any temporary exemption granted pursuant to the application will be without prejudice to, and will not limit the Commission's rights in any manner with respect to, any Commission investigation of, or administrative proceedings involving or against, Covered Persons, including, without limitation, the consideration by the Commission of a permanent exemption from section 9(a) of the Act requested pursuant to the application or the revocation or removal of any temporary exemptions granted under the Act in connection with the application.
2. None of CS Group, CSAG, Applicants or any of the Covered Persons will employ the former employees of the Pleading Entity or any other person who subsequently may be identified by the Pleading Entity or any U.S. or non-U.S. regulatory or enforcement agencies as having been responsible for the Conduct in any capacity without first making a further application to the Commission pursuant to section 9(c).
3. Each of CS Group, CSAG, Applicants, and the Covered Persons will adopt and implement policies and procedures reasonably designed to ensure that it will comply with the terms and conditions of the Orders applicable to it within 60 days of the date of the Permanent Order, or with respect to condition four immediately below, such later date or dates as may be contemplated by the Plea Agreement, the DPA, the SEC Order, or any other orders issued by regulatory or enforcement agencies addressing the Conduct.
4. Each of CS Group, CSAG, Applicants and the Covered Persons will comply in all material respects with the material terms and conditions of the Plea Agreement, the DPA, with the material terms of the SEC Order, and any other orders issued by, or settlements with, regulatory or enforcement agencies addressing the Conduct, in each case as such terms and conditions are applicable to it. In addition, within 30 days of each anniversary of the Permanent Order (until and including the third such anniversary), CS Group will submit a certification signed by its chief executive officer and its chief compliance officer, confirming that (i) the Pleading Entity has complied with the terms and conditions of the Plea Agreement in all material respects; (ii) CS Group has complied with the terms and conditions of the DPA in all material respects; and (iii) CS Group, CSAG, Applicants and the Covered Persons have complied with the terms and conditions of the Orders in all material respects. Each such certification will be submitted to the Chief Counsel of the Commission's Division of Investment Management with a copy to the Chief Counsel of the Commission's Division of Enforcement;
5. Applicants will provide written notification to the Chief Counsel of the Commission's Division of Investment Management with a copy to the Chief Counsel of the Commission's Division of Enforcement of a material violation of the terms and conditions of the Orders within 30 days of discovery of the material violation. In addition, CS Group will submit to the Chief Counsel of the Commission's Division of Investment Management, with a copy to the Chief Counsel of the Commission's Division of Enforcement, (i) the Remediation Report and (ii) the Multilateral Remedies Report within 30 days of each anniversary of the Permanent Order (until and including the third such anniversary). CS Group's first of each such report will be signed by its chief executive officer and chief compliance officer.
The Commission has considered the matter and finds that Applicants have made the necessary showing to justify granting a temporary exemption.
Accordingly,
By the Commission.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Regulation R, Rule 701 requires a broker or dealer (as part of a written agreement between the bank and the broker or dealer) to notify the bank if the broker or dealer makes certain determinations regarding the financial status of the customer, a bank employee's statutory disqualification status, and compliance with suitability or sophistication standards.
The Commission estimates there are 3,560 registered brokers or dealers that would, on average, notify 1,000 banks approximately two times annually about a determination regarding a customer's high net worth or institutional status or suitability or sophistication standing as well as a bank employee's statutory disqualification status. Based on these estimates, the Commission anticipates that Regulation R, Rule 701 would result in brokers or dealers making approximately 2,000 notifications to banks per year. The Commission further estimates (based on the level of difficulty and complexity of the applicable activities) that a broker or dealer would spend approximately 15 minutes per notice to a bank. Therefore, the estimated total annual third party disclosure burden for the requirements in Regulation R, Rule 701 is 500
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed 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 of this publication.
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:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 1-K (17 CFR 239.91) is used to file annual reports by Tier 2 issuers under Regulation A, an exemption from registration under the Securities Act of 1933 (15 U.S.C. 77a
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.
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 (44 U.S.C. 3501
Rule 15Ga-2 and Form ABS-15G (17 CFR 249.1400) is used for reports of information required under Rule 15Ga-1 and Rule 15Ga-2 (17 CFR 240.15Ga-1) (17 CFR 240.15Ga-2) of the Exchange Act of 1934 (“Exchange Act”). Exchange Act Rule 15Ga-1 requires asset-backed securitizers to provide disclosure regarding fulfilled an unfulfilled repurchase requests with respect to asset-backed securities. The purpose of the information collected on Form ABS-15G is to implement the disclosure requirements of Section 943 of the Dodd-Frank Wall Street Reform and Consumer Protection Act to provide information regarding the use of representations and warranties in the asset-backed securities markets. Rule 15Ga-1 had a one-time reporting requirement that expired on February 14, 2012. We estimate that approximately 1,343 securitizers will file Form ABS-15G annually at estimated (19.307 hours) burden hours per response. In addition, we estimate that 75% of the 19.307 hours per response (14.48 hours) is carried internally by the securitizers for a total annual reporting burden of 19,447 hours (14.48 hours per response × 1,343 responses).
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.
The public may view background documentation for this information collection at the following website:
2:00 p.m. on Thursday, October 28, 2021.
The meeting will be held via remote means and/or at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's website at
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
The subject matter of the closed meeting will consist of the following topics:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to examinations and enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting agenda items that may consist of adjudicatory, examination, litigation, or regulatory matters.
For further information; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Regulation Blackout Trade Restriction (“Regulation BTR”) (17 CFR 245.100-245.104) clarifies the scope and application of Section 306(a) of the Sarbanes-Oxley Act of 2002 (“Act”) (15 U.S.C. 7244(a)). Section 306(a)(6) [15 U.S.C. 7244(a)(6)] of the Act requires an issuer to provide timely notice to its directors and executive officers and to the Commission of the imposition of a blackout period that would trigger the statutory trading prohibition of Section
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.
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 (44 U.S.C. 3501
Under the Exchange Act of 1934 (15 U.S.C. 78a
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.
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 (44 U.S.C. 3501
The Commission's Office of the Advocate for Small Business Capital Formation (“Office”) seeks to collect feedback from small businesses and their investors to understand better the population that it is serving and their role in the small business ecosystem. The proposed collection of information will help ensure that the Office's outreach efforts and communication materials and other program initiatives are effective and responsive to customer needs. More specifically, the Office will seek the following four categories of information: (i) Demographic information about program participants, (ii) feedback on the Office's outreach and educational materials, (iii) capital formation-related questions, and (iv) issues and challenges faced by small businesses and their investors. This feedback will allow the Office to tailor its outreach efforts and communication materials to serve its customers more effectively. Collecting feedback will also allow the Office to understand better its target audience and improve outreach events and educational materials by optimizing their content and delivery, while strategizing how best to deploy the Office's resources to address issues and challenges faced by its customers.
Feedback collected under this generic clearance will provide useful
Below are the projected average estimates for the next three years:
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Office, including whether the information shall have practical utility; (b) the accuracy of the estimates of the burden 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 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.
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.
Please direct your written comments to: David L. Bottom, Director/Chief Information Officer, Securities and Exchange Commission, c/o John Pezzullo, 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 (“Act”),
The Exchange is filing with the Commission a proposed rule change to amend Exchange Rule 15.3 to: (a) Adopt a policy relating to billing errors that is substantially similar to the policy adopted by another group of exchanges; (b) enable the Exchange, upon request, to permit a member of the Exchange (“Member”) or applicant for registration as such to provide alternative payment instructions (
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 is proposing to adopt a policy relating to billing errors. Specifically, the Exchange proposes to adopt a new paragraph (c) in Rule 15.3 entitled, “Billing Errors,” which would provide that all fees and rebates assessed by the Exchange prior to the three full calendar months before the month in which the Exchange becomes aware of a billing error shall be considered final. Particularly, the Exchange would resolve such an error by crediting or debiting affected Members and non-Member customers of the Exchange (“Non-Members”) based on the fees or rebates that should have been applied in the three full calendar months preceding the month in which the Exchange became aware of the error, including to all impacted transactions that occurred during those months.
The purpose of the proposed change is to provide both the Exchange and its Members and Non-Members finality with respect to fees and rebates previously assessed by the Exchange and the ability to close their books after a specified time period. The Exchange notes that Rule 15.3(b) already requires that pricing disputes must be submitted to the Exchange in writing and accompanied by supporting documentation no later than 60 days after receipt of a billing invoice, which
The Exchange notes that the language of proposed Rule 15.3(c) is substantially similar to language included in the fee schedules of the four Cboe U.S. equities exchanges—Cboe BZX Exchange, Inc. (“Cboe BZX”),
The Exchange is also proposing to amend Rule 15.3(a) to enable the Exchange, upon request, to permit a Member or applicant for registration as such to provide alternative payment instructions (
The purpose of the proposed change is to provide the Exchange with the flexibility to agree to an alternative payment arrangement with a Member or applicant for registration as such, if such Member or applicant so requests, as the Exchange understands that certain Members or applicants may have an operational burden associated with remitting payment to the Exchange through an NSCC clearing account. Under the proposed rule change, any such alternative payment instructions must: (i) Be agreed to by the Exchange; and (ii) permit the Exchange to initiate the debit of any fees and other monies due and owing to the Exchange in a manner similar to the current requirement with respect to an NSCC clearing account (
Lastly, the Exchange proposes to add paragraph headings and relocate certain existing text within Rule 15.3 for organization purposes. Specifically, the Exchange is proposing to add paragraph headings to entitle paragraph (a) as “Collection Through Direct Debit”; paragraph (b) as “Pricing Disputes”; and proposed new paragraph (c) as “Billing Errors”. Additionally, the Exchange is proposing to relocate existing Rule text related to pricing dispute procedures that is currently located in paragraph (a), which otherwise addresses procedures related to the Exchange's direct debit process for the collection of fees and other monies due and owing to the Exchange, to paragraph (b), which contains procedures related to pricing disputes, as the Exchange believes that including such Rule text in paragraph (b) is more appropriate. The Exchange is not proposing to amend any of the Rule text being relocated. These proposed changes are non-substantive and are intended to provide greater context and organization within Rule 15.3 and make such Rule easier to navigate and understand.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
With respect to the proposed policy relating to billing errors, the Exchange believes that providing that all fees and rebates are final after three months (
The Exchange believes the proposed change to enable the Exchange, upon request, to permit a Member or applicant for registration as such to provide alternative payment instructions (
Additionally, as this proposed change is designed to give the Exchange and its Members flexibility regarding their payment arrangements while providing a safeguard by which the Exchange may revert to its standard collection process, the Exchange believes it would promote just and equitable principles of trade, foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest. This proposed change is also equitable and not unfairly discriminatory because it is based on objective standards and would apply equally to all Members and applicants for registration as such, as described above.
Finally, the Exchange believes the proposed changes to add paragraph headings and relocate certain existing Rule text related to pricing disputes to the appropriate paragraph within Rule 15.3 would remove impediments to and perfect the mechanism of a free and open market and a national market system, as such changes would provide greater context and organization within the Rule, which would assist Members in locating the relevant text within the Rule and therefore make the Rule easier to navigate and understand. As noted above, the Rule text being relocated is not being amended by this proposal. For the foregoing reasons, the Exchange believes these proposed changes are non-substantive and consistent with the Act.
The Exchange does not believe that the proposal will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. With respect to the proposed billing errors policy, the proposal would establish a clearly defined timeframe for fees and rebates to be considered final that would apply equally to all Members and Non-Members. Additionally, as noted above, this proposed change is similar to rules of other exchanges and therefore does not raise any new or novel issues that have not been previously considered by the Commission.
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)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(7) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to provide additional guidance in its rules regarding prohibited disruptive practices.
The rule amendments included as part of this proposed rule change are to apply to all products traded on CFE, including both non-security futures and any security futures that may be listed for trading on CFE. The scope of this filing is limited solely to the application of the proposed rule change to security futures that may be traded on CFE. Although no security futures are currently listed for trading on CFE, CFE may list security futures for trading in the future.
The text of the proposed rule change is attached as Exhibit 4 to the filing but is not attached to the publication of this notice.
In its filing with the Commission, CFE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. CFE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
CFE Rule 620 (Disruptive Practices) prohibits various disruptive practices and CFE Policy and Procedure XVIII (Disruptive Trading Practices) (“P&P XVIII”) of the Policies and Procedures section of the CFE Rulebook lists various factors that CFE may consider in assessing whether conduct violates Rule 620. The proposed rule change proposes to make the following clarifying updates in relation to these provisions.
CFE is proposing to amend the provisions of Section E of P&P XVIII in the following manner.
The title of Section E of P&P XVIII is currently “Orders entered by mistake.” The proposed rule change proposes to revise the title of Section E of P&P XVIII to be “Orders entered by mistake or error” to clarify that Section E of P&P XVIII covers Orders entered either by mistake or error. The Exchange considers the terms “mistake” and “error” to be synonyms for one another while recognizing that a mistake may be more associated with human action while an error may be more associated with system behavior. To the extent that there is a difference between the two terms and that Section E of P&P XVIII refers to “errors” within the text of the provision, the Exchange is making this change to make clear that a mistake is encompassed within the references to “errors” in the text of the provision.
The first sentence of Section E of P&P XVIII currently provides that: “An unintentional, accidental, or `fat-finger' Order will not constitute a violation of Rule 620, but such activity may be a violation of other Exchange rules, including, but not limited to, Rule 608 (Acts Detrimental to the Exchange; Acts Inconsistent with Just and Equitable Principles of Trade; Abusive Practices).” The proposed rule change proposes to insert the word “typically” after the word “not” so that the sentence provides that an unintentional, accidental, or “fat-finger” Order will not typically constitute a violation of Rule 620, but such activity may be a violation of other Exchange rules, including, but not limited to, Rule 608.
The second sentence of Section E of P&P XVIII currently provides that: “Market participants are expected to take steps to mitigate the occurrence of errors, and their impact on the market.” The proposed rule change proposes to further flesh out this sentence by revising it to provide that: “Market participants are expected to take reasonable steps or otherwise have controls to prevent, detect and mitigate the occurrence of errors, market disruptions and system anomalies and their impact on the market.” This proposed additional language clarifies that market participants are expected to take reasonable steps or to otherwise have controls in place to prevent, detect, and mitigate the occurrence of errors, market disruptions and system anomalies, and their impact on the market.
The proposed rule change proposes to add the following sentence at the end of Section E of P&P XVIII in reference to the second sentence of Section E of P&P XVIII: “Failure to take reasonable steps to prevent, detect and mitigate such errors, market disruptions, system anomalies or impacts may violate Rule 609 (Supervision) or other Exchange rules.” This sentence is intended to provide additional clarity to market participants about how P&P XVIII interacts with other CFE rules.
Section K of P&P XVIII describes factors that may be considered in determining whether a market participant intended to disrupt the orderly conduct of trading or the fair execution of transactions or demonstrated a reckless disregard for the orderly conduct of trading or the fair execution of transactions. CFE is proposing to amend Section K of P&P XVIII to provide that additional factors that may be considered in this regard include, but are not limited to, the impact to other market participants' ability to trade, engage in price discovery, or manage risk. CFE believes that the addition of these added non-exhaustive factors will provide further clarity regarding how CFE determines whether a market participant intended to disrupt, or demonstrated a reckless disregard for, the orderly conduct of trading or the fair execution of transactions.
CFE also proposes to make the following clarifying updates to the provisions of Section U of P&P XVIII.
The title of Section U of P&P XVIII is currently “Submission of partial messages to reduce latency or purposeful corruption of data packets.” The proposed rule change proposes to revise the title of Section U of P&P XVIII to be “Submission of partial messages to reduce latency or purposeful submission of intentionally corrupted or malformed data packets.”
The second sentence of Section U of P&P XVIII currently provides that: “Purposefully corrupting or constructing malformed data packets also has the potential to disrupt the systems of the Exchange.” The proposed rule change proposes to revise this sentence to provide that: “Purposefully submitting intentionally corrupted or malformed data packets also has the potential to disrupt the systems of the Exchange.”
The proposed revisions to Section U of P&P XVIII are intended clarify that activity within the scope of Section U of P&P XVIII relating to corrupted or malformed data packets involves the purposeful submission of intentionally corrupted or malformed data packets.
CFE also is proposing to add an example of prohibited activity under Rule 620. In particular, P&P XVIII includes a non-exhaustive list of various examples of conduct that may be found to violate Rule 620. The additional example provides a specific illustration of a trading strategy that may violate Rule 620 which involves purposefully submitting malformed data packets to CFE's trading system (“CFE System”) as part of a trading strategy to reduce latency. In particular, this type of trading strategy may violate Rule 620(b)(iv) which provides that no Person shall intentionally or recklessly submit or cause to be submitted an actionable or non-actionable message(s) that has the potential to disrupt the systems of the Exchange or other market participants.
The proposed additional example includes the following fact pattern: A market participant engages in a trading strategy where the market participant's trading system is designed to purposefully submit malformed data across one or more physical connections to the Exchange. For example, based on information received, the participant's trading system begins constructing an order message (
The purposeful submission of intentionally corrupted or malformed data packets has the potential to impact the systems of the Exchange and the Exchange believes that this activity serves no useful purpose. Accordingly, the proposed rule change further clarifies how this type of activity may violate Rule 620 and P&P XVIII.
The proposed rule change is consistent with similar updated guidance provided by other designated contract markets (“DCMs”) regarding disruptive practices.
CFE also believes that the proposed rule change is consistent with the Electronic Trading Risk Principles recently adopted by the CFTC.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
• To enable the Exchange to enforce compliance by its Trading Privilege Holders and persons associated with its Trading Privilege Holders with the provisions of the rules of the Exchange,
• to prevent fraudulent and manipulative acts and practices,
• to promote just and equitable principles of trade,
• to remove impediments to and perfect the mechanism of a free and open market and a national market system,
• and in general, to protect investors and the public interest.
The proposed rule change provides additional guidance regarding disruptive practices that violate CFE Rule 620. CFE considers the disruptive trading practices addressed by the proposed rule change to be prohibited by existing CFE rules, including current Rule 620, P&P XVIII, CFE Rule 608 (Acts Detrimental to the Exchange, Acts Inconsistent with Just and Equitable Principles of Trade; Abusive Practices) and CFE Rule 609 (Supervision). CFE also considers the provisions that are proposed to be added to P&P XVIII relating to factors that the Exchange may consider in assessing whether conduct violates Rule 620 and relating to purposefully submitting intentionally corrupted or malformed data packets to be within the scope of existing CFE rules, including current Rule 620 and P&P XVIII. Although this is the case, CFE believes that it is beneficial to provide additional guidance to market participants through the inclusion of further detail in CFE's rules regarding prohibited disruptive practices.
By further describing prohibited disruptive trading practices in CFE's rules and by providing additional guidance relating to the application of CFE's rule provisions with respect to disruptive trading practices, the proposed changes to P&P XVIII contribute to the protection of CFE's market and market participants from abusive practices; to the promotion of fair and equitable trading on CFE's market; and to precluding activity on CFE's market that is disruptive to the operation of the Exchange or the ability of other market participants to trade, engage in price discovery, or manage risk.
Accordingly, the Exchange believes that the proposed rule change will benefit market participants because it will provide greater clarity regarding the Exchange's current prohibited disruptive trading practices and the various factors that CFE may consider in assessing whether conduct violates Rule 620. Additionally, the Exchange believes that the proposed rule change will strengthen its ability to carry out its responsibilities as a self-regulatory organization by providing further guidance regarding the type of activity that is prohibited under CFE Rule 620. In addition, the proposed rule change benefits market participants by contributing to the protection of CFE's market and market participants from abusive practices and to the promotion of a fair and orderly market.
The Exchange also believes that the proposed rule change is equitable and not unfairly discriminatory in that the rule amendments included in the proposed rule change would apply equally to all market participants.
CFE does not believe that the proposed rule changes will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes that the proposed rule change will not burden intra-market competition because the clarifying updates to the prohibited disruptive trading practices will apply equally to all market participants. The Exchange also believes that these clarifying updates will help to foster a fair and orderly market and contribute to furthering the promotion of fair and
No written comments were solicited or received with respect to the proposed rule change.
The proposed rule change will become operative on October 20, 2021. At any time within 60 days of the date of effectiveness of the proposed rule change, the Commission, after consultation with the CFTC, may summarily abrogate the proposed rule change and require that the proposed rule change be refiled in accordance with the provisions of Section 19(b)(1) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Maryland dated 10/18/2021.
Issued on 10/18/2021.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 17229 8 and for economic injury is 17230 0.
The States which received an EIDL Declaration # are Delaware, District of Columbia, Maryland, Pennsylvania, Virginia.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Arizona dated 10/13/2021.
Issued on 10/13/2021.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 17219 6 and for economic injury is 17220 0.
The State which received an EIDL Declaration # is Arizona.
Notice of public hearing.
The International Joint Commission (IJC) is inviting public comment on recommendations made by the International Souris River Study Board (ISRSB) in a report that reviews the 1989 International Agreement between the Government of Canada and the Government of the United States of America for Water Supply and Flood Control in the Souris River Basin (the 1989 Agreement). Comments will be accepted at a public hearing to be held virtually on November 3, 2021, and by mail, email (
The International Souris River Study Board was established by the IJC in 2017 to assist in responding to a reference by the governments of Canada and the United States under Article IX of the
The governments asked the IJC to coordinate the full completion of the 2013 IJC Plan of Study. As part of this, the IJC was asked to evaluate and make recommendations regarding the Operating Plan contained in Annex A to the 1989 Agreement. Among other items, the agreement coordinates the operation of certain dams and reservoirs in the basin.
IJC recommendations to the two federal governments under Article IX of the
The Study Board findings and recommendations cover five themes:
The public hearing and comment period concern potential recommendations the IJC may make to the Governments of Canada and the United States. The Study Board findings include that the 1989 Agreement is functioning well and is effective at achieving its intended objectives of flood protection and water supply benefits, and they identify marginal or incremental benefits in five alternative measures recommended for further investigation. The recommendations being considered include the following:
1. Modify the Winter Drawdown Elevation Targets to build greater flexibility into reservoir operations by varying reservoir elevation targets according to antecedent moisture conditions in the basin;
2. Extend the Winter Drawdown Date from February 1 to March 1 to provide additional river flow for improved environmental benefits during February;
3. Lower the Spring Maximum Flow Limits to reduce flood peaks and agricultural flood risk during small to moderate floods in riverine reaches in North Dakota (
4. Establish a Summer Operating Plan to provide more guidance to reservoir operators to better manage summer reservoir operations under all conditions;
5. Shift the Apportionment rule calculations to a Water Year (November to October) from the current Calendar
The full Study Board report and recommendations can be found by visiting
Commissioners will be present to hear comments on the Study Board's report recommendations at the above referenced virtual public hearing on November 3, 2021. A public comment period on the ISRSB's report will also be open through November 15, 2021. Public input is essential to the Commission's consideration of a recommendation to the governments of the United States and Canada.
The International Joint Commission was established under the Boundary Waters Treaty of 1909 to help the United States and Canada prevent and resolve disputes over the use of the waters the two countries share. The Commission's responsibilities include investigating and reporting on issues of concern when asked by the governments of the two countries. For more information, visit the IJC website at ijc.org.
Christina Chiasson (Ottawa) (613) 293-1031 at
State Justice Institute.
Grant Guideline for FY 2022.
This guideline sets forth the administrative, programmatic, and financial requirements attendant to Fiscal Year 2022 State Justice Institute grants.
October 25, 2021.
Jonathan Mattiello, Executive Director, State Justice Institute, 12700 Fair Lakes Circle, Suite 340, Fairfax, VA 22033, 703-660-4979,
Pursuant to the State Justice Institute Act of 1984 (42 U.S.C. 10701
The following Grant Guideline is adopted by the State Justice Institute for FY 2022.
Pursuant to the State Justice Institute Act of 1984 (42 U.S.C. 10701
SJI is authorized by Congress to award grants, cooperative agreements, and contracts to the following entities and types of organizations:
• State and local courts and their agencies (42 U.S.C. 10705(b)(1)(A)).
• National nonprofit organizations controlled by, operating in conjunction with, and serving the judicial branches of State governments (42 U.S.C. 10705(b)(1)(B)).
• National nonprofit organizations for the education and training of judges and support personnel of the judicial branch of State governments (42 U.S.C. 10705(b)(1)(C)). An applicant is considered a national education and training applicant under section 10705(b)(1)(C) if:
The principal purpose or activity of the applicant is to provide education and training to State and local judges and court personnel; and
The applicant demonstrates a record of substantial experience in the field of judicial education and training.
• Other eligible grant recipients (42 U.S.C. 10705 (b)(2)(A) through (D)).
Provided that the objectives of the project can be served better, SJI is also authorized to make awards to:
○ Nonprofit organizations with expertise in judicial administration
○ Institutions of higher education
○ Individuals, partnerships, firms, corporations (for-profit organizations must waive their fees)
○ Private agencies with expertise in judicial administration
SJI may also make awards to State or local agencies and institutions other than courts for services that cannot be adequately provided through nongovernmental arrangements (42 U.S.C. 10705(b)(3)).
SJI is prohibited from awarding grants to Federal, tribal, and international courts.
The SJI Board of Directors makes awards on a Federal fiscal year quarterly basis. Applications may be submitted at any time but will be considered for award based only on the timetable below.
To be considered timely, an application must be submitted by the application deadline noted above. Applicants must use the SJI Grants Management System (GMS) to submit all applications and post-award documents. The SJI GMS is accessible at
Questions related to the SJI Grant Program or the SJI GMS should be directed to
The State Justice Institute Authorization Act of 1984 (42 U.S.C. 10701
• Direct a national program of financial assistance designed to ensure that each citizen of the United States is provided ready access to a fair and effective system of justice;
• Foster coordination and cooperation with the Federal judiciary;
• Promote recognition of the importance of the separation of powers doctrine to an independent judiciary; and
• Encourage education for judges and support personnel of State court systems
To accomplish these broad objectives, SJI is authorized to provide funding to State courts, national organizations that support and are supported by State courts, national judicial education organizations, and other organizations that can assist in improving the quality of justice in the State courts.
Through the award of grants, contracts, and cooperative agreements, SJI is authorized to perform the following activities:
• Support technical assistance, demonstrations, special projects, research, and training to improve the administration of justice in the State courts;
• Provide for the preparation, publication, and dissemination of information regarding State judicial systems;
• Participate in joint projects with Federal agencies and other private grantors;
• Evaluate or provide for the evaluation of programs and projects to determine their impact upon the quality of criminal, civil, and juvenile justice and the extent to which they have contributed to improving the quality of justice in the State courts;
• Encourage and assist in furthering judicial education; and
• Encourage, assist, and serve in a consulting capacity to State and local courts in the development, maintenance, and coordination of criminal, civil, and juvenile justice programs and services.
SJI is supervised by a Board of Directors appointed by the U.S. President, with the advice and consent of the U.S. Senate. The SJI Board of Directors is statutorily composed of six judges; a State court administrator and four members of the public, no more than two of the same political party. Additional information about SJI, including a list of members of the SJI Board of Directors, is available at
The SJI Board of Directors has established Priority Investment Areas for grant funding. SJI will allocate significant financial resources through grant-making for these Priority Investment Areas. The Priority Investment Areas are applicable to all grant types. SJI strongly encourages potential grant applicants to consider projects addressing one or more of these Priority Investment Areas and to integrate the following factors into each proposed project:
• Evidence based, data-driven decision making;
• Cross-sector collaboration;
• Systemic approaches (as opposed to standalone programs);
• Institutionalization of new court processes and procedures;
• Ease of replication; and
• Sustainability
For FY 2022, the Priority Investment Areas are listed below in no specific order.
1.
•
•
2.
•
•
•
3.
• Disparities in Justice—SJI supports research and data-driven approaches that examine statutory requirements, policies, and practices that result in disparities for justice-involved persons. These disparities can be because of inequities in socioeconomic, racial, ethnic, gender, age, health, or other factors. In addition to identifying disparities, SJI promotes systemic approaches to reducing disparities.
•
•
•
4.
•
•
•
•
•
•
•
•
SJI supports five types of grants: Project, Technical Assistance (TA), Curriculum Adaptation and Training (CAT), Strategic Initiatives Grants (SIG) Program, and the Education Support Program (ESP). A brief description of each type of grant is below.
Project grants are intended to support innovative education and training, research and evaluation, demonstration, and technical assistance projects that can improve the administration of justice in State courts locally or nationwide. State court and national nonprofit applicants may request up to $300,000 for 36 months. Local court applicants may request up to $200,000 for 24 months. Examples of expenses not covered by Project Grants include the salaries, benefits, or travel of full-or part-time court employees. Funding may not be used for the ordinary, routine operations of court systems.
All applicants for Project Grants must contribute a cash match greater than or equal to the SJI award amount. This means that grant awards by SJI must be matched at least dollar for dollar by grant applicants. For example, an applicant seeking a $300,000 Project Grant must provide a cash match of at least $300,000. Applicants may contribute the required cash match directly or in cooperation with third parties. Funding from other federal departments or agencies may not be used for cash match.
TA grants are intended to provide State or local courts, or regional court associations, with sufficient support to obtain expert assistance to diagnose a problem, develop a response to that problem, and implement any needed changes. TA Grants may not exceed $75,000 or 12 months in duration. In calculating project duration, applicants are cautioned to fully consider the time required to issue a request for proposals, negotiate a contract with the selected provider, and execute the project. Funds may not be used for salaries, benefits, or travel of full- or part-time court employees.
Applicants for TA Grants are required to contribute a total match (cash and in-kind) of not less than 50 percent of the SJI award amount, of which 20 percent must be cash. For example, an applicant seeking a $75,000 TA grant must provide a $37,500 match, of which up to $30,000 can be in-kind and not less than $7,500 must be cash. Funding from other federal departments and agencies may not be used for cash match.
CAT Grants are intended to: (1) Enable courts or national court associations to modify and adapt model curricula, course modules, or conference programs to meet States' or local jurisdictions' educational needs; train instructors to present portions or all of the curricula; and pilot-test them to determine their appropriateness, quality, and effectiveness; or (2) conduct judicial branch education and training programs, led by either expert or in-house personnel, designed to prepare judges and court personnel for innovations, reforms, and/or new technologies recently adopted by grantee courts. CAT grants may not exceed $40,000 or 12 months in duration. Examples of expenses not covered by CAT grants include the salaries, benefits, or travel of full-or part-time court employees.
Applicants for CAT Grants are required to contribute a total match (cash and in-kind) of not less than 50 percent of the SJI award amount, of which 20 percent must be cash. For example, an applicant seeking a $40,000 CAT grant must provide a $20,000 match, of which up to $16,000 can be in-kind and not less than $4,000 must be cash. Funding from other federal departments and agencies may not be used for cash match.
The SIG program provides SJI with the flexibility to address national court issues as they occur and develop solutions to those problems. This is an innovative approach where SJI uses its expertise and the expertise and knowledge of its grantees to address key issues facing State courts across the United States.
The funding is used for grants or contractual services and is handled at
The ESP is intended to enhance the skills, knowledge, and abilities of State court judges and court managers by enabling them to attend out-of-state, or to enroll in online, educational and training programs sponsored by national and State providers they could not otherwise attend or take online because of limited State, local, and personal budgets. The program covers only the cost of tuition up to a maximum of $1,000 per course.
The ESP is administered by the National Judicial College (NJC) and the National Center for State Courts (NCSC)/Institute for Court Management (ICM), in partnership with SJI. For NJC courses, register online at
This section describes in detail what an application should include. An applicant should anticipate that if it fails to submit an application that contains all the specified project components, it may negatively affect the review of the application. Applicants must use the SJI GMS to submit all applications and post-award documents. The SJI GMS is accessible at
Applicants for SJI grants must submit the following forms and/or documents via the SJI GMS:
The application form requests basic information regarding the proposed project, the applicant, and the total amount of funding requested from SJI. It also requires the signature of an individual authorized to certify on behalf of the applicant that the information contained in the application is true and complete; submission of the application has been authorized by the applicant; and, if funding for the proposed project is approved, the applicant will comply with the requirements and conditions of the award, including the assurances set forth in Form D in section V.A.4,
An application from a State or local court must include a copy of Form B signed by the State's chief justice or State court administrator. The signature denotes that the proposed project has been approved by the State's highest court or the agency or council it has designated. Further, the signature denotes, if applicable, a cash match reduction has been requested, and that if SJI approves funding for the project, the court or the specified designee will receive, administer, and be accountable for the awarded funds.
Applicants must provide a detailed budget and a budget narrative providing an explanation of the basis for the estimates in each budget category. If funds from other sources are required to conduct the project, either as match or to support other aspects of the project, the source, current status of the request, and anticipated decision date must be provided.
Form D lists the statutory, regulatory, and policy requirements with which recipients of SJI funds must comply.
Applicants other than units of State or local government are required to disclose whether they, or another entity that is part of the same organization as the applicant, have advocated a position before Congress on any issue, and to identify the specific subjects of their lobbying efforts.
The abstract should highlight the purposes, goals, methods, and anticipated benefits of the proposed project. It should not exceed one single-spaced page and should be uploaded on the “Attachments” tab in SJI GMS.
The program narrative for an application may not exceed 25 double-spaced pages on 8
a.
Applicants must provide a verified source for the data that supports the statement of the problem (
b.
If the project is not site-specific, the applicants should discuss the problems that the proposed project would address, and why existing programs, procedures, services, or other resources cannot adequately resolve those problems. In addition, applicants should describe how, if applicable, the project will be sustained in the future through existing resources.
c.
d.
e.
f.
The applicants should include a clear, concise statement of what the proposed project is intended to accomplish and how those objectives will be met. Applicants should delineate the tasks to be performed in achieving the project objectives and the methods to be used for accomplishing each task.
Applicants must describe how the proposed project addresses one or more Priority Investment Areas. If the project does not address one or more Priority Investment Areas, the applicants must provide an explanation as to the reason.
a.
•
•
•
•
b.
If a consultant has not yet been identified, the applicants must describe the procedures and criteria that will be used to select the consultant (applicants are expected to follow their jurisdictions' normal procedures for procuring consultant services).
If the consultant has been identified, the applicants should provide a letter from that individual or organization documenting interest in and availability for the project, as well as the consultant's ability to complete the assignment within the proposed time frame and for the proposed cost. The consultant must agree to submit a detailed written report to the court and SJI upon completion of the technical assistance. Applicants should then describe the steps that have been or will be taken to facilitate implementation of the consultant's recommendations upon completion of the technical assistance.
The applicants should then address the following questions:
• What specific tasks will the consultant and court staff undertake?
• What is the schedule for completion of each required task and the entire project?
• How will the applicant oversee the project and provide guidance to the consultant, and who at the court or regional court association would be responsible for coordinating all project tasks and submitting quarterly progress and financial status reports?
c.
• Why is this education program needed at the present time?
• What are the project's goals?
• What are the learning objectives of the adapted curriculum?
• What program components would be implemented, and what types of modifications, if any, are anticipated in length, format, learning objectives, teaching methods, or content?
• Who would be responsible for adapting the model curriculum?
• Who would the participants be, how many would there be, how would they be recruited, and from where would they come (
The applicants should also provide the proposed timeline, including the project start and end dates, the date(s) the judicial branch education program will be presented, and the process that will be used to modify and present the program. Applicants should also identify who will serve as faculty, and how they will be selected, in addition to the measures taken to facilitate subsequent presentations of the program.
d.
If a trainer has not yet been identified, the applicants must describe the
If the trainer has been identified, the applicants should provide a letter from that individual or organization documenting interest in and availability for the project, as well as the trainer's ability to complete the assignment within the proposed time frame and for the proposed cost.
In addition, the applicants should address the following questions:
• What specific tasks would the trainer and court staff or regional court association members undertake?
• What presentation methods will be used?
• What is the schedule for completion of each required task and the entire project?
• How will the applicant oversee the project and provide guidance to the trainer, and who at the court or affiliated with the regional court association would be responsible for coordinating all project tasks and submitting quarterly progress and financial status reports?
• The applicant should explain what steps have been or will be taken to coordinate the implementation of the training. For example, if the support or cooperation of specific court, regional court association officials, committees, other agencies, funding bodies, organizations, or a court other than the applicant will be needed to adopt the reform and initiate the proposed training, how will the applicant secure their involvement in the development and implementation of the training?
e.
The application must: (1) Explain how and to whom the products would be disseminated; describe how they would benefit the State courts, including how they could be used by judges and court personnel; (2) identify development, production, and dissemination costs covered by the project budget; and (3) present the basis on which products and services developed or provided under the grant would be offered to the court community and the public at large (
The type of product to be prepared depends on the nature of the project. For example, in most instances, the products of a research, evaluation, or demonstration project should include: (1) An article summarizing the project findings that is publishable in a journal serving the courts community nationally, (2) an executive summary that would be disseminated to the project's primary audience, or (3) both an article and executive summary. Applicants proposing to conduct empirical research or evaluation projects with national import should describe how they would make their data available for secondary analysis after the grant period.
The curricula and other products developed through education and training projects should be designed for use by others and again by the original participants in the course of their duties. Applicants proposing to develop web-based products should provide for sending a notice and description of the document to the appropriate audiences to alert them to the availability of the website or electronic product (
Applicants must submit a final draft of all written grant products to SJI for review and approval at least 30 days before the products are submitted for publication or reproduction. For products in website or multimedia format, applicants must provide for SJI review of the product at the treatment, script, rough-cut, and final stages of development, or their equivalents. No grant funds may be obligated for publication or reproduction of a final grant product without the written approval of SJI. Project products should be submitted to SJI electronically in HTML or PDF format.
Applicants must also include in all project products a prominent acknowledgment that SJI provided support and a disclaimer paragraph such as, “This [document, film, videotape, etc.] was developed under [grant/cooperative agreement] number SJI-[insert number] from the State Justice Institute. The points of view expressed are those of the [author(s), filmmaker(s), etc.] and do not necessarily represent the official position or policies of the State Justice Institute.” The “SJI” logo must appear on the front cover of a written product or in the opening frames of a website or other multimedia products, unless SJI approves another placement. The SJI logo can be downloaded from SJI's website:
An applicant that is not a State or local court and has not received a grant from SJI within the past 3 years should indicate whether it is either: (1) A national nonprofit organization controlled by, operating in conjunction with, and serving the judicial branches of State governments, or (2) a national nonprofit organization for the education and training of State court judges and support personnel. If the applicant is a nonjudicial unit of Federal, State, or local government, it must explain whether the proposed services could be adequately provided by nongovernmental entities.
Applicants that have not received a grant from SJI within the past 3 years should include a statement describing their capacity to administer grant funds, including the financial systems used to monitor project expenditures (and income, if any), a summary of their past experience in administering grants, and any resources or capabilities they have that would particularly assist in the successful completion of the project.
Unless requested otherwise, an applicant that has received a grant from SJI within the past 3 years should describe only the changes in its organizational capacity, tax status, or financial capability that may affect its capacity to administer a grant. If the applicant is a nonprofit organization (other than a university), it must also provide documentation of its 501(c)(3) tax-exempt status as determined by the Internal Revenue Service and a copy of a current certified audit report. For the purpose of this requirement, “current” means no earlier than 2 years prior to the present calendar year.
The applicant should include a summary of key staff members' and consultant's training and experience that qualify them for conducting and managing the proposed project. Resumes of identified staff should be attached to the application. If one or more key staff members and consultants are not known at the time of the application, a description of the criteria that would be used to select persons for these positions should be included. The applicant should also identify the person who would be responsible for managing and reporting on the financial aspects of the proposed project.
Projects should include an evaluation plan to determine whether the project met its objectives. The evaluation
Describe how the project will be sustained after SJI assistance ends. The sustainability plan should describe how current collaborations and evaluations will be used to leverage ongoing resources. SJI encourages applicants to ensure sustainability by coordinating with local, State, and other Federal resources.
Applicants must complete a budget in the SJI GMS and upload a budget narrative. The budget narrative should provide the basis for all project-related costs and the sources of any match, as required. The budget narrative should thoroughly and clearly describe every category of expense listed. SJI expects proposed budgets to be complete, cost effective, and allowable (
1.
• To supplant State or local funds supporting a program or activity (such as paying the salary of court employees who would be performing their normal duties as part of the project or paying rent for space that is part of the court's normal operations).
• To construct court facilities or structures.
• Solely to purchase equipment.
Examples of
The final determination of what constitutes basic court services is made by SJI and is not negotiable.
Meals and refreshments are generally not allowable costs unless the applicant or grantee obtains
• Sustenance is not otherwise available (
• The size of the event and nearby food and/or beverage vendors would make it impractical to not provide meals and/or refreshments; and/or
• A special presentation at a conference requires a plenary address where there is no other time for sustenance to be obtained.
Trinkets (items such as hats, mugs, portfolios, t-shirts, coins, gift bags, gift cards, etc.) may not be purchased with SJI grant funding.
2.
3.
4.
5.
6.
7.
8.
9.
9.
10.
11.
The grantee is responsible for ensuring that the total amount of match proposed is contributed. If a proposed contribution is not fully met, SJI may reduce the award amount accordingly, to maintain the ratio originally provided for in the award agreement. The match should be expended at the same rate as SJI funding.
a.
b.
c.
d.
12.
13.
14.
1.
2.
• Soundness of the methodology.
• Demonstration of need for the project.
• Appropriateness of the proposed evaluation design.
• If applicable, the key findings and recommendations of the most recent evaluation and the proposed responses to those findings and recommendations.
• Applicant's management plan and organizational capabilities.
• Qualifications of the project's staff.
• Products and benefits resulting from the project, including the extent to which the project will have long-term benefits for State courts across the nation.
• Degree to which the findings, procedures, training, technology, or other results of the project can be transferred to other jurisdictions.
• Reasonableness of the proposed budget.
• Demonstration of cooperation and support of other agencies that may be affected by the project.
3.
• Whether the assistance would address a critical need of the applicant.
• Soundness of the technical assistance approach to the problem.
• Qualifications of the consultant(s) to be hired or the specific criteria that will be used to select the consultant(s).
• Commitment of the court or association to act on the consultant's recommendations.
• Reasonableness of the proposed budget.
4.
• Goals and objectives of the proposed project.
• How the training would address a critical need of the court or association.
• Need for outside funding to support the program.
• Soundness of the approach in achieving the project's educational or training objectives.
• Integration of distance learning and technology in project design and delivery.
• Qualifications of the trainer(s) to be hired or the specific criteria that will be used to select the trainer(s) (training project only).
• Likelihood of effective implementation and integration of the modified curriculum into the State or local jurisdiction's ongoing educational programming (curriculum adaptation project only).
• Commitment of the court or association to the training program (training project only).
• Expressions of interest by judges and/or court personnel, as demonstrated by letters of support.
5.
• Goals and objectives of the proposed project.
• Demonstration of need for the project.
• Degree to which the project addresses a current national court issue.
• Level of innovation in addressing the identified need.
• Potential impact on the court community.
• Qualifications of the consultant(s) engaged to manage the project.
6.
• Must be submitted by an eligible type of applicant.
• Must request funding within funding constraints of each grant type (if applicable).
• Must be within statutorily allowable expenditures.
• Must include all required forms and documents.
• The SJI Board of Directors reviews all applications and makes final funding decisions. The decision to fund a project is solely that of the SJI Board of Directors.
7.
8.
Applicants must use the SJI GMS to submit all applications and post-award documents. SJI urges applicants to submit applications at least 72 hours prior to the application due date in order to allow time for the applicant to receive an application acceptance message, and to correct in a timely fashion any problems that may arise, such as missing or incomplete forms. Files must be in .doc, .docx, .xls, .xlsx, .pdf, .jpg, or .png format. Individual file size cannot exceed 5 MB.
Applicants (except for ESP) must register with the SJI GMS to submit applications for funding consideration. Below are the basic steps for submission:
1. Access the SJI GMS and complete the information required to create an account.
2. If you already have an account, log in and create a new application.
3. Complete all required forms and upload all required documents:
• Application Form.
• Certificate of State Approval.
• Budget and Budget Narrative.
• Assurances.
• Disclosure of Lobbying Activities.
• Project Abstract.
• Program Narrative.
• Attachments.
Letters of Support.
Project Timeline.
Resumes.
Indirect Cost Approval.
Other Attachments.
4. Certify and submit the application to SJI for review.
All required reports and documents must be submitted via the SJI GMS.
Recipients of SJI funds must submit Quarterly Progress and Financial Status Reports within 30 days of the close of each calendar quarter (that is, no later than January 30, April 30, July 30, and October 30).
1.
2.
Awardees will receive funds on a reimbursable, U.S. Treasury check-issued or electronic funds transfer (EFT) basis. Upon receipt, review, and approval of a Request for Reimbursement by SJI, payment will be issued directly to the grantee or its designated fiscal agent. Requests for reimbursements, along with the instructions for its preparation, and the SF 3881 Automated Clearing House (ACH/Miscellaneous Payment Enrollment Form for EFT) are available in the SJI GMS.
1.
• Properly accounts for receipt of funds under each grant awarded and the expenditure of funds for each grant by category of expenditure (including matching contributions and project income).
• Assures that expended funds are applied to the appropriate budget category included within the approved grant.
• Presents and classifies historical costs of the grant as required for budgetary and evaluation purposes.
• Provides cost and property controls to assure optimal use of grant funds.
• Is integrated with a system of internal controls adequate to safeguard the funds and assets covered, check the accuracy and reliability of the accounting data, promote operational efficiency, and assure conformance with any general or special conditions of the grant.
• Meets the prescribed requirements for periodic financial reporting of operations.
• Provides financial data for planning, control, measurement, and evaluation of direct and indirect costs.
The Final Progress Report should describe the project activities during the final calendar quarter of the project and the close-out period, including to whom project products have been disseminated; provide a summary of activities during the entire project; specify whether all the objectives set forth in the approved application or an approved adjustment have been met and, if any of the objectives have not been met, explain why not; and discuss what, if anything, could have been done differently that might have enhanced the impact of the project or improved its operation. In addition, grantees are required to submit electronic copies of the final products related to the project (
No funds made available by SJI may be used to support or conduct training programs for the purpose of advocating particular nonjudicial public policies or encouraging nonjudicial political activities (42 U.S.C. 10706(b)).
If the qualifications of an employee or consultant assigned to a key project staff position are not adequately described in the application or if there is a change of a person assigned to such a position, the recipient must submit a description of the qualifications of the newly assigned person to SJI. Prior written approval of the qualifications of the new person assigned to a key staff position must be received from SJI before the salary or consulting fee of that person and associated costs may be paid or reimbursed from grant funds.
Recipients of SJI grants must provide for an annual fiscal audit, which includes an opinion on whether the financial statements of the grantee present fairly its financial position and its financial operations in accordance with generally accepted accounting principles. If requested, a copy of the audit report must be made available electronically to SJI.
Budget revisions among direct cost categories that: (1) Transfer grant funds to an unbudgeted cost category, or (2) individually or cumulatively exceed 5 percent of the approved original budget or the most recently approved revised budget require prior SJI approval. Refer to section X,
Personnel and other officials connected with SJI-funded programs must adhere to the following requirements:
• Officials or employees of a recipient court or organization must not participate personally through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, in any proceeding, application, request for a ruling or other determination, contract, grant, cooperative agreement, claim, controversy, or other particular matter in which SJI funds are used, where, to their knowledge, they or their immediate family, partners, organization other than a public agency in which they are serving as officer, director, trustee, partner, or employee or any person or organization with whom they are negotiating or have any arrangement concerning prospective employment, have a financial interest.
• In the use of SJI project funds, an official or employee of a recipient court or organization must avoid any action which might result in or create the appearance of:
Using an official position for private gain; or
Affecting adversely the confidence of the public in the integrity of the SJI program.
• Requests for proposals or invitations for bids issued by a recipient of SJI funds or a sub-grantee or subcontractor will provide notice to prospective bidders that the contractors who develop or draft specifications, requirements, statements of work, and/or requests for proposals for a proposed procurement will be excluded from bidding on or submitting a proposal to compete for the award of such procurement.
If any patentable items, patent rights, processes, or inventions are produced during the course of SJI-sponsored work, such fact must be promptly and fully reported to SJI. Unless there is a prior agreement between the grantee and SJI on the disposition of such items, SJI will determine whether protection of the invention or discovery must be sought.
Funds awarded to recipients by SJI must not be used, indirectly or directly, to influence Executive orders or similar promulgations by Federal, State, or local agencies; or to influence the passage or defeat of any legislation by Federal, State, or local legislative bodies (42 U.S.C. 10706(a)).
It is the policy of the SJI Board of Directors to award funds only to support applications submitted by organizations that would carry out the objectives of their applications in an unbiased manner. Consistent with this policy and the provisions of 42 U.S.C. 10706, SJI will not knowingly award a grant to an applicant that has, directly or through an entity that is part of the same organization as the applicant, advocated a position before Congress on the specific subject matter of the application.
All grant recipients are required to provide a match. A match is the portion of project costs not borne by SJI. A match includes both cash and in-kind contributions. Cash match is the direct outlay of funds by the grantee or a third party to support the project. In-kind match for State and local courts or other units of government consists of contributions of time and/or services of current staff members, new employees, space, supplies, etc., made to the project by the grantee or others (
Under normal circumstances, allowable match may be incurred only during the project period. The amount and nature of required match depends
The grantee is responsible for ensuring that the total amount of match proposed is contributed. If a proposed contribution is not fully met, SJI may reduce the award amount accordingly, to maintain the ratio originally provided for in the award agreement. Match should be expended at the same rate as SJI funding.
The SJI Board of Directors looks favorably upon any unrequired match contributed by applicants when making grant decisions. The match requirement may be waived in exceptionally rare circumstances upon the request of the chief justice of the highest court in the State, or the highest ranking official in the requesting organization and approval by the SJI Board of Directors (42 U.S.C. 10705(d)). The SJI Board of Directors encourages all applicants to provide the maximum amount of cash and in-kind match possible, even if a waiver is approved. The amount and nature of the match are criteria in the grant selection process.
Other Federal department and agency funding may not be used for cash match.
No person may, on the basis of race, sex, national origin, disability, color, or creed, be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination under any program or activity supported by SJI funds. Recipients of SJI funds must take any measures necessary immediately to effectuate this provision.
No recipient may contribute or make available SJI funds, program personnel, or equipment to any political party or association or the campaign of any candidate for public or party office. Recipients are also prohibited from using funds in advocating or opposing any ballot measure, initiative, or referendum. Officers and employees of recipients must not intentionally identify SJI or recipients with any partisan or nonpartisan political activity associated with a political party or association or the campaign of any candidate for public or party office (42 U.S.C. 10706(a)).
1.
Recipients also must display the following disclaimer on all grant products: “This [document, film, videotape, etc.] was developed under [grant/cooperative agreement] number SJI-[insert number] from the State Justice Institute. The points of view expressed are those of the [author(s), filmmaker(s), etc.] and do not necessarily represent the official position or policies of the State Justice Institute.”
a.
b.
c.
2.
Applicants should disclose their intent to sell grant-related products in the application. Grantees must obtain SJI's prior written approval of their plans to recover project costs through the sale of grant products. Written requests to recover costs ordinarily should be received during the grant period and should specify the nature and extent of the costs to be recouped, the reason that such costs were not budgeted (if the rationale was not disclosed in the approved application), the number of copies to be sold, the intended audience for the products to be sold, and the proposed sale price. If the product is to be sold for more than $25, the written request should also include a detailed itemization of costs that will be recovered and a certification that the costs were not supported by either SJI grant funds or grantee matching contributions.
In the event that the sale of grant products results in revenues that exceed the costs to develop, produce, and disseminate the product, the revenue must continue to be used for the authorized purposes of SJI-funded project or other purposes consistent with the State Justice Institute Act that have been approved by SJI.
Except as otherwise provided in the terms and conditions of a SJI award, a recipient is free to copyright any books, publications, or other copyrightable materials developed in the course of an SJI-supported project, SJI must reserve a royalty-free, nonexclusive, and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the materials for purposes consistent with the State Justice Institute Act.
All products and, for TA and CAT grants, consultant and/or trainer reports are to be completed and distributed not later than the end of the award period,
In addition to the distribution specified in the grant application, grantees must send an electronic version of all products in HTML or PDF format to SJI.
All products prepared as the result of SJI-supported projects must be originally developed material unless otherwise specified in the award documents. Material not originally developed that is included in such products must be properly identified, whether the material is in a verbatim or extensive paraphrase format.
No funds made available by SJI may be used directly or indirectly to support legal assistance to parties in litigation, including cases involving capital punishment.
All reports must be submitted via the SJI GMS as detailed below:
1.
2.
1.
2.
3.
4.
• To supplant State or local funds supporting a program or activity (such as paying the salary of court employees who would be performing their normal duties as part of the project or paying rent for space which is part of the court's normal operations).
• To construct court facilities or structures.
• Solely to purchase equipment.
Examples of
The final determination of what constitutes basic court services is made by SJI and is not negotiable.
Meals and refreshments are generally not allowable costs unless the applicant or grantee obtains
• Sustenance is not otherwise available (
• The size of the event and nearby food and/or beverage vendors would make it impractical to not provide meals and/or refreshments; and/or
• A special presentation at a conference requires a plenary address where there is no other time for sustenance to be obtained.
Trinkets (items such as hats, mugs, portfolios, t-shirts, coins, gift bags, gift cards, etc.) may not be purchased with SJI grant funding.
5.
7.
The purpose of this section is to establish accounting system
• Complying with the statutory requirements for the award, disbursement, and accounting of funds.
• Complying with regulatory requirements of SJI for the financial management and disposition of funds.
• Generating financial data to be used in planning, managing, and controlling projects.
• Facilitating an effective audit of funded programs and projects.
All grantees receiving awards from SJI are responsible for the management and fiscal control of all funds. Responsibilities include accounting for receipts and expenditures, maintaining adequate financial records, and refunding expenditures disallowed by audits. If the project includes subawards, the grantees responsibilities also include:
1.
2.
3.
4.
5.
6.
The grantee is responsible for establishing and maintaining an adequate system of accounting and internal controls, and for ensuring that an adequate system exists for each of its sub-grantees and contractors. An acceptable and adequate accounting system:
• Properly accounts for receipt of funds under each grant awarded and the expenditure of funds for each grant by category of expenditure, including matching contributions and project income.
• Assures that expended funds are applied to the appropriate budget category included within the approved grant.
• Presents and classifies historical costs of the grant as required for budgetary and evaluation purposes.
• Provides cost and property controls to assure optimal use of grant funds.
• Is integrated with a system of internal controls adequate to safeguard the funds and assets covered, check the accuracy and reliability of the accounting data, promote operational efficiency, and assure conformance with any general or special conditions of the grant.
• Meets the prescribed requirements for periodic financial reporting of operations.
• Provides financial data for planning, control, measurement, and evaluation of direct and indirect costs.
Accounting for all funds awarded by SJI must be structured and executed on a total-project-cost basis. That is, total project costs, including SJI funds, State and local matching shares, and any other fund sources included in the approved project budget, serve as the foundation for fiscal administration and accounting. Grant applications and financial reports require budget and cost estimates based on total costs.
1.
2.
3.
4.
5.
6.
7.
8.
a.
b.
c.
d.
e.
The procedures and regulations set forth below are applicable to all SJI grant funds and grantees.
1.
2.
a.
b.
a.
a.
b.
c.
d.
2.
3.
a.
• A copy of an indirect cost rate agreement or allocation plan approved for a grantee during the preceding 2 years by any Federal granting agency on the basis of allocation methods substantially in accord with those set forth in the applicable cost circulars must be submitted to SJI.
• Where flat rates are accepted in lieu of actual, indirect costs, grantees may not also charge expenses normally included in overhead pools (
1.
2.
• Follow-up.
• Maintaining a record of the actions taken on recommendations and time schedules.
• Responding to and acting on audit recommendations.
• Submitting periodic reports to SJI on recommendations and actions taken.
3.
1.
a.
b.
2.
All requests for programmatic or budgetary adjustments requiring SJI approval must be submitted by the project director in a timely manner (ordinarily 30 days prior to the implementation of the adjustment being requested). All requests for changes from the approved application will be carefully reviewed for both consistency with this guideline and the enhancement of grant goals and objectives. Failure to submit adjustments in a timely manner may result in the termination of a grantee's award.
The following Grant Adjustments require the prior written approval of SJI:
• Budget revisions among direct cost categories that (1) transfer grant funds to an unbudgeted cost category or (2) individually or cumulatively exceed 5 percent of the approved original budget or the most recently approved revised budget.
• A change in the scope of work to be performed or the objectives of the project.
• A change in the project site.
• A change in the project period, such as an extension of the grant period or extension of the final financial or progress report deadline.
• Satisfaction of special conditions, if required.
• A change in or temporary absence of the project director.
• The assignment of an employee or consultant to a key staff position whose qualifications were not described in the application, or a change of a person assigned to a key project staff position.
• A change in or temporary absence of the person responsible for managing and reporting on the grant's finances.
• A change in the name of the grantee organization.
• A transfer or contracting out of grant-supported activities.
• A transfer of the grant to another recipient.
• Pre-agreement costs.
• The purchase of ADA equipment and software.
• Consultant rates.
• A change in the nature or number of the products to be prepared or the way a product would be distributed.
All grantees must promptly notify SJI, in writing, of events or proposed changes that may require adjustments to the approved project design. In requesting an adjustment, the grantee must set forth the reasons and basis for the proposed adjustment and any other information the program manager determines would help SJI's review. All requests for Grant Adjustments must be submitted via the SJI GMS.
If the request is approved, the grantee will be sent a Grant Adjustment signed by the SJI Executive Director. If the request is denied, the grantee will be sent a written explanation of the reasons for the denial.
Major changes in scope, duration, training methodology, or other significant areas must be approved in advance by SJI. A grantee may make minor changes in methodology, approach, or other aspects of the grant to expedite achievement of the grant's objectives with subsequent notification to SJI.
A request to change or extend the grant period must be made at least 30 days in advance of the end date of the grant. A revised task plan should accompany a request for an extension of the grant period, along with a revised budget if shifts among budget categories will be needed. A request to change or extend the deadline for the final financial report or final progress report must be made at least 14 days in advance of the report deadline.
Whenever an absence of the project director is expected to exceed a continuous period of 1 month, the plans for the conduct of the project director's duties during such absence must be approved in advance by SJI. This
If the project director relinquishes or expects to relinquish active direction of the project, SJI must be notified immediately. In such cases, if the grantee or sub-grantee wishes to terminate the project, SJI will forward procedural instructions upon notification of such intent. If the grantee wishes to continue the project under the direction of another individual, a statement of the candidate's qualifications should be sent to SJI for review and approval. The grant may be terminated if the qualifications of the proposed individual are not approved in advance by SJI.
No principal activity of a grant-supported project may be transferred or contracted out to another organization without specific prior approval by SJI. All such arrangements must be formalized in a contract or other written agreement between the parties involved. Copies of the proposed contract or agreement must be submitted for prior approval to SJI at the earliest possible time. The contract or agreement must state, at a minimum, the activities to be performed, the time schedule, the policies and procedures to be followed, the dollar limitation of the agreement, and the cost principles to be followed in determining what costs, both direct and indirect, will be allowed. The contract or other written agreement must not affect the grantee's overall responsibility for the direction of the project and accountability to SJI.
Atlantic and Western Railway, Limited Partnership (ATW), has filed a verified notice of exemption under 49 CFR part 1152 subpart F—
ATW has certified that: (1) No local traffic has moved over the Line since 2016; (2) because the Line is not a through line, there is no overhead traffic on the Line that would need to be rerouted; (3) no formal complaint filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of a complainant within the two-year period; and (4) the requirements at 49 CFR 1105.7(b) and 1105.8(c) (notice of environmental and historic reports), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received,
All pleadings, referring to Docket No. AB 646 (Sub-No. 1X), should be filed with the Surface Transportation Board via e-filing on the Board's website. In addition, a copy of each pleading must be served on ATW's representative, Eric M. Hocky, Clark Hill PLC, Two Commerce Square, 2001 Market Street, Suite 2620, Philadelphia, PA 19103.
If the verified notice contains false or misleading information, the exemption is void ab initio.
ATW has filed a combined environmental and historic report that addresses the potential effects, if any, of the abandonment on the environment and historic resources. OEA will issue a Draft Environmental Assessment (Draft EA) by October 29, 2021. The Draft EA will be available to interested persons on the Board's website, by writing to OEA, or by calling OEA at (202) 245-0294. Assistance for the hearing impaired is available through the Federal Relay Service at (800) 877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the Draft EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), ATW shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by ATW's filing of a notice of consummation by October 25, 2022, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Office of the United States Trade Representative.
Invitation for applications.
The United States-Mexico-Canada Agreement (USMCA) provides for the establishment of a roster of individuals to serve on binational panels convened to review final determinations in antidumping or countervailing duty (AD/CVD) proceedings and amendments to AD/CVD statutes of a USMCA Party. The United States annually renews its selections for the roster. The Office of the United States Trade Representative (USTR) invites applications from eligible individuals wishing to be included on the roster for the period April 1, 2022, through March 31, 2023.
USTR must receive your application by November 22, 2021.
You should submit your application through the Federal eRulemaking Portal:
Philip Butler, Associate General Counsel,
Article 10.12 of the USMCA provides that a party involved in an AD/CVD proceeding may obtain review by a binational panel of a final AD/CVD determination of one USMCA Party with respect to the products of another USMCA Party. Binational panels decide whether AD/CVD determinations are in accordance with the domestic laws of the importing USMCA Party using the standard of review that would have been applied by a domestic court of the importing USMCA Party. A panel may uphold the AD/CVD determination, or may remand it to the national administering authority for action not inconsistent with the panel's decision. Panel decisions may be reviewed in specific circumstances by a three-member extraordinary challenge committee, selected from a separate roster composed of 15 current or former judges.
Article 10.11 of the USMCA provides that a USMCA Party may refer an amendment to the AD/CVD statutes of another USMCA Party to a binational panel for a declaratory opinion as to whether the amendment is inconsistent with the General Agreement on Tariffs and Trade (GATT), the GATT Antidumping or Subsidies Codes, successor agreements, or the object and purpose of the USMCA with regard to the establishment of fair and predictable conditions for the liberalization of trade. If the panel finds that the amendment is inconsistent, the two USMCA Parties must consult and seek to achieve a mutually satisfactory solution.
Annex 10-B.1 of the USMCA provides for the maintenance of a roster of at least 75 individuals for service on Chapter 10 binational panels, with each USMCA Party selecting at least 25 individuals. A separate five-person panel is formed for each review of a final AD/CVD determination or statutory amendment. To form a panel, the two USMCA Parties involved each appoint two panelists, normally by drawing upon individuals from the roster. If the Parties cannot agree upon the fifth panelist, one of the Parties, decided by lot, selects the fifth panelist from the roster. The majority of individuals on each panel must consist of lawyers in good standing, and the chair of the panel must be a lawyer.
When there is a request to establish a panel, roster members from the two involved USMCA Parties will complete a disclosure form that is used to identify possible conflicts of interest or appearances thereof. The disclosure form requests information regarding financial interests and affiliations, including information regarding the identity of clients of the roster member and, if applicable, clients of the roster member's firm.
The United States bases the selection of individuals for inclusion on the Chapter 10 roster on the eligibility criteria set out in Annex 10-B.1 of the USMCA. Annex 10-B.1 provides that Chapter 10 roster members must be citizens of a USMCA Party, must be of good character and of high standing and repute, and are to be chosen strictly on the basis of their objectivity, reliability, sound judgment, and general familiarity with international trade law. Aside from judges, roster members may not be affiliated with the governments of any of the three USMCA Parties. Annex 10-B.1 also provides that, to the fullest extent practicable, the roster shall include judges and former judges.
USTR is committed to diversity, equity, inclusion, and accessibility, and encourages all qualified individuals to apply.
The Code of Conduct under Chapter 10 and Chapter 31 (Dispute Settlement) (see
Section 412 of the United States-Mexico-Canada Agreement Implementation Act (Pub. L. 116-113 (19 U.S.C. 4582)), establishes procedures for the selection by USTR of the individuals chosen by the United States for inclusion on the Chapter 10 roster. The roster is renewed annually, and applies during the one-year period beginning April 1st of each calendar year.
Under Section 412, an interagency committee chaired by USTR prepares a preliminary list of candidates eligible for inclusion on the Chapter 10 roster. After consultation with the Senate Committee on Finance and the House Committee on Ways and Means, the U.S. Trade Representative selects the final list of individuals chosen by the United States for inclusion on the Chapter 10 roster.
USTR invites eligible individuals who wish to be included on the Chapter 10 roster for the period April 1, 2022, through March 31, 2023, to submit applications. In order to be assured of consideration, USTR must receive your application by November 22, 2021. Submit applications electronically to
In order to ensure the timely receipt and consideration of applications, USTR strongly encourages applicants to make on-line submissions, using
Applications must be typewritten, and should be headed “Application for Inclusion on USMCA Chapter 10 Roster.” Applications should include the following information, and each section of the application should be numbered as indicated:
1. Name of the applicant.
2. Business address, telephone number, fax number, and email address.
3. Citizenship(s).
4. Current employment, including title, description of responsibility, and name and address of employer.
5. Relevant education and professional training.
6. Spanish language fluency, written and spoken.
7. Post-education employment history, including the dates and addresses of each prior position and a summary of responsibilities.
8. Relevant professional affiliations and certifications, including, if any, current bar memberships in good standing.
9. A list and copies of publications, testimony, and speeches, if any, concerning AD/CVD law. Judges or former judges should list relevant judicial decisions. Submit only one copy of publications, testimony, speeches, and decisions.
10. Summary of any current and past employment by, or consulting or other work for, the Governments of the United States, Canada, or Mexico.
11. The names and nationalities of all foreign principals for whom the applicant is currently or has previously been registered pursuant to the Foreign Agents Registration Act, 22 U.S.C. 611
12. List of proceedings brought under U.S., Canadian, or Mexican AD/CVD law regarding imports of U.S., Canadian, or Mexican products in which the applicant advised or represented (for example, as consultant or attorney) any U.S., Canadian, or Mexican party to such proceeding and, for each such proceeding listed, the name and country of incorporation of such party.
13. A short statement of qualifications and availability for service on Chapter 10 panels, including information relevant to the applicant's familiarity with international trade law and willingness and ability to make time commitments necessary for service on panels.
14. On a separate page, the names, addresses, telephone and fax numbers of three individuals willing to provide information concerning the applicant's qualifications for service, including the applicant's character, reputation, reliability, judgment, and familiarity with international trade law.
Current members of the Chapter 10 roster who remain interested in inclusion on the Chapter 10 roster only need to indicate that they are reapplying and submit updates (if any) to their applications on file. Current members do not need to resubmit their applications. Individuals who previously have applied but have not been selected must submit new applications to reapply. If an applicant, including a current or former roster member, has previously submitted materials referred to in item 9, such materials need not be resubmitted.
Applications are covered by a Privacy Act System of Records Notice and are not subject to public disclosure and will not be posted publicly on
False statements by applicants regarding their personal or professional qualifications, or financial or other relevant interests that bear on the applicants' suitability for placement on the Chapter 10 roster or for appointment to binational panels, are subject to criminal sanctions under 18 U.S.C. 1001.
Federal Aviation Administration (FAA), DOT.
Notice of intent for waiver of aeronautical land-use.
The Federal Aviation Administration is considering a proposal to change a portion of the airport from aeronautical to nonaeronautical use and to authorize the conversion of the airport property. The proposal consists of one parcel of land containing a total of approximately 16.6 acres.The land comprising this parcel is outside the forecasted need for aviation development and, thus, is no longer needed for indirect or direct aeronautical use. The income from the conversion of this parcel will benefit the aviation community by reinvestment into the airport.
Approval does not constitute a commitment by the FAA to financially assist in the conversion of the subject airport property nor a determination of eligibility for grant-in-aid funding from the FAA. The disposition of proceeds from the conversion of the airport property will be in accordance with FAA's policy and Procedures Concerning the Use of Airport Revenue, published in the
Comments must be received on or before November 24, 2021.
Comments on this application may be emailed to the FAA at the following address: Mr. Jesse Carriger, Manager,
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Chase Stapp, Director of Public Safety, City of San Marcos, at the following address: 630 East Hopkins, San Marcos, Texas 78666.
Mrs. Jessica Bryan, Civil Engineer, Federal Aviation Administration, Texas Airports District Office, ASW-650, 10101 Hillwood Parkway, Fort Worth, TX 76177, Telephone: (817) 222-4039, email:
Documents reflecting this FAA action may be reviewed at the above locations.
Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).
Notice of extension of comment period.
The FHWA is extending the comment period for the Re-Designation of the PHFS notice. The original comment period is set to close on October 25, 2021. The extension is based on input received from DOT stakeholders that the October 25 closing date does not provide sufficient time for submission of comments to the docket. The FHWA agrees that the comment period should be extended. Therefore, the closing date for submission of comments is extended to December 15, 2021, which will provide others interested in commenting additional time to submit comments to the docket.
The comment period for the notice published August 26, 2021, at 86 FR 47705, is extended. Comments must be received on or before December 15, 2021.
Interested parties are invited to submit comments identified by DOT Docket ID FHWA-2020-0010 by any of the following methods:
Questions may be addressed to Birat Pandey,
On August 26, 2021, at 86 FR 47705, FHWA published in the
Each re-designation of the network may increase the mileage on the PHFS by not more than 3 percent of the total mileage of the system. The current PHFS consists of 41,518 centerline miles of roadway and is a component of the National Highway Freight Network. The re-designation initiated through this notice may add up to 1,246 miles of additional mileage to the current PHFS. Please be advised that this notice and process is not related to prior notices and processes for the designation of the National Multimodal Freight Network at 81 FR 36381 (June 6, 2016) and 82 FR 49478 (October 25, 2017).
State Freight Advisory Committees, represented by their States, are invited to submit comments. Other entities are encouraged to engage directly with their State Freight Advisory Committee or the State department of transportation.
The original comment period for the notice closes on October 25, 2021. However, DOT stakeholders have expressed concern that this closing date does not provide sufficient time for submission of comments to the docket. To allow time for interested parties to submit comments, the closing date is changed from October 25, 2021, to December 15, 2021.
Office of the Secretary (OST), Department of Transportation (DOT).
Notice and request for comments.
The Department of Transportation (DOT or Department) invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for an information collection for the Department's Airport Concession Disadvantaged Business Enterprise (ACDBE) program.
Written comments should be submitted by December 27, 2021.
You may submit comments identified by Docket No. DOT-OST-2021-0127 through one of the following methods:
•
•
•
Marcus England, (202) 267-0487,
The DOT has the important responsibility of ensuring that firms competing for concession opportunities are not disadvantaged by unlawful discrimination. The DOT's most important tool for meeting this requirement has been its ACDBE program, which is regulated by 49 CFR part 23 (ACDBE regulation) and is mandated by 49 U.S.C. 47107(e), originally enacted in 1987 and amended in 1992.
The information collections described in this notice are necessary to maintain successful implementation of the ACDBE program. The collections help ensure recipients that receive Federal financial assistance from the Airport Improvement Program (AIP) of the Federal Aviation Administration (FAA) do not discriminate in the provision of opportunities for disadvantaged business enterprises in airport concessions.
We are required to publish this notice in the
To assist in estimating the potential paperwork burden of these collections, the Department reached out to a subset of the 396 primary airports who are subject to the ACDBE program requirements to gain a general understanding of the associated costs and how much time they spend each year responding to these collections.
To help commenters provide information that will better allow the Department to include the appropriate paperwork burden within this collection, we offer the following clarifications: A “collection of information,” is defined as the obtaining, causing to be obtained, soliciting, or requiring the disclosure to an agency, third parties or the public of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, ten or more persons. 5 CFR part 1320. The activities that constitute the “burden” associated with a collection are defined in 5 CFR part 1320 as the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. In addition, as stated in 5 CFR part 1320, recordkeeping requirement means a requirement imposed by or for an agency on persons to maintain specified records, including a requirement to: (1) Retain such records; (2) notify third parties, the Federal Government, or the public of the existence of such records; (3) disclose such records to third parties, the Federal Government, or the public; or (4) report to third parties, the Federal Government, or the public regarding such records.
For purposes of this 60-day notice, we have included the burden estimates we received from the small number of stakeholders we contacted. To ensure that estimates contain burdens associated with aspects of the program that constitute paperwork burdens as defined by the PRA, the Department requests that commenters who provide burden estimates for aspects of the program identified below be as specific as possible, including what amount of time each task takes and what, if any, additional costs beyond labor costs (
Section 23.21 requires recipients to submit an ACDBE program to the FAA for approval. The FAA evaluates submitted ACDBE programs to determine whether they include all the provisions and measures required by the regulation. Timely submission and FAA approval of a recipient's ACDBE program are conditions of eligibility for FAA financial assistance.
Paragraph (d) of § 23.21 requires recipients that make any significant changes to their ACDBE programs to provide an amended program to the FAA for approval before implementing the changes.
The FAA received total annual burden hours from eight recipients, two of each hub size (nonhub, small, medium and large), ranging from 19 to 40 hours. The average burden hour per recipient response, based on the information received from the eight recipients, is 28 hours. The FAA calculated the total annual cost burden by multiplying the total annual burden hours (56 hours × 396 respondents) against the fully loaded state government wage rate taken from Bureau of Labor and Statistics' (BLS's) estimate of median wages for employees in “Management Occupations” (SOC 11-000) working in “State Government, excluding schools and hospitals” (NAICS 999200) at
Section 23.27 requires recipients with approved ACDBE programs to submit a “Uniform Report of ACDBE Participation” (Uniform Report). The Uniform Report is developed electronically and submitted annually to the FAA. The Uniform Report assists the FAA in conducting program oversight of recipients' ACDBE programs, identifying trends or problem areas in the program, and ensuring that the ACDBE program is achieving its goal of encouraging ACDBE participation in concession-related opportunities.
The reporting requirements of the Uniform Report include the following information:
• Overall percentage goals of ACDBE participation and their race-conscious (RC) and race-neutral (RN) components;
• new and continuing car rental concession opportunities and activity under the ACDBE program during the reporting period;
• total concession gross revenues for concessionaires (prime and sub) and purchases of goods and services at the airport;
• number of lease agreements, contracts, etc., in effect or taking place during the reporting period in each participation category for all concessionaires and purchases of goods and services;
• total gross revenues in each participation category for ACDBEs;
• total gross revenues attributable to race-conscious and race-neutral measures, respectively;
• overall car rental percentage goal and the race-conscious (RC) and race-neutral (RN) components of it; and
• The following information for each ACDBE firm participating in the ACDBE program during the period: (1) Firm name; (2) Type of business; (3) Beginning and expiration dates of the agreement, including options to renew; (4) Dates that material amendments have been or will be made to the agreement (if known); and (5) Estimated gross receipts for the firm during the reporting period.
The FAA received total annual burden hours from eight recipients, two of each hub size (nonhub, small, medium and large), ranging from 15 to 96 hours. The average burden hour per response. based on the information received from the eight recipients, is 56 hours. The FAA estimated the total annual cost burden by multiplying the total annual burden hours (56 hours × 396 respondents = 22,176) against the fully loaded state government wage rate of $72.35. The state government wage rate was taken from Bureau of Labor and Statistics' (BLS's) estimate of median wages for employees in “Management Occupations” (SOC 11-000) working in “State Government, excluding schools and hospitals” (NAICS 999200) at
Section 23.29 requires recipients to implement appropriate mechanisms to ensure that all ACDBE program participants comply with the regulation's requirements. Recipients must include in their ACDBE programs specific provisions to be inserted into concession agreements and management contracts setting forth the enforcement mechanisms and other means the recipient uses to ensure compliance. These provisions must include a written certification that recipients reviewed records of all contracts, leases, joint venture agreements, or other concession-related agreements, and monitored the work on-site at their airport for this purpose. If the FAA conducts a compliance review or investigation, it verifies whether the recipient has the written certifications and has monitored the work performed by ACDBEs; recipients do not otherwise submit the information. Recipients collect the information during on-site reviews of concession workplaces to determine whether ACDBEs are actually performing the work for which credit is being claimed.
The FAA received total annual burden hours from eight recipients, two of each hub size (nonhub, small, medium and large), ranging from 0 to 416 hours. The annual burden hours for this requirement can be zero if a recipient does not have any concessions or any ACDBE participation to monitor. The average burden hour per response, based on the information received from the eight recipients, is 153 hours. The FAA seeks comment on whether the estimates, and in particular the higher estimates, were based on the substantive monitoring requirement rather than the paperwork-specific requirements.
The FAA estimated the total annual cost burden by multiplying the total annual burden hours (153 hours × 396 respondents = 60,588) against the fully loaded state government wage rate of $72.35. The state government wage rate was taken from Bureau of Labor and Statistics' (BLS's) estimate of median wages for employees in “Management Occupations” (SOC 11-000) working in “State Government, excluding schools and hospitals” (NAICS 999200) at
Congress carefully considered and concluded that race-neutral means alone are insufficient to remedy the effects of discrimination in airport concession opportunities. To meet Constitutional strict scrutiny requirements, ACDBE programs' race-conscious means must be narrowly tailored. Section 23.45 requires that recipients set and submit to the FAA an overall goal for ACDBE participation in concession opportunities every three years. The goal represents the ACDBE participation that would be expected in the relevant market area given the availability of ACDBEs. Paragraph (d)(5) of § 23.51 requires recipients to include with their overall goal submission a description of the methodology they used to establish the goal. Recipients must also include a projection of the portions of the overall goal that they expect to meet through race-neutral and race-conscious means, respectively, and the basis for the projection. Paragraph (d) of § 23.25 requires recipients to maximize the use of race-neutral measures, obtaining as much as possible of the ACDBE participation needed to meet overall goals through such measures.
The FAA received total annual burden hours from eight recipients, two of each hub size (nonhub, small, medium and large), ranging from 1 to 120 hours. The average burden hour per response, based on the information received from the eight recipients, is 53 hours. The FAA estimated the total annual cost burden by multiplying the total annual burden hours (53 hours × 396 respondents = 20,988) against the fully loaded state government wage rate of $72.35. The state government wage rate was taken from Bureau of Labor and Statistics' (BLS's) estimate of median wages for employees in “Management Occupations” (SOC 11-000) working in “State Government, excluding schools and hospitals” (NAICS 999200) at
Section 23.57 requires recipients that do not meet their overall goal for ACDBE awards and commitments shown on their Uniform Report of ACDBE Participation (found in appendix A to part 23) at the end of any fiscal year to take the following steps to be regarded by the Department as implementing their ACDBE programs in good faith: (1) Analyze in detail the reasons for the difference between the overall goal and the recipient's awards and commitments in that fiscal year; and (2) establish specific steps and milestones to correct the problems the recipient identified in its analysis and to enable the recipient to meet fully its goal for the new fiscal year. CORE 30 airports or other airports designated by the FAA must submit by December 31st of each year, the analysis and corrective actions developed under § 23.57 to the FAA for approval and must retain the analysis and corrective actions for three years. Recipients that are not a CORE 30 airports must retain the analysis and corrective actions in their records for three years and make them available to the FAA, on request, for their review.
The FAA estimates 130 recipients are subject to developing, and either retaining or submitting, the shortfall analyses and corrective actions required under § 23.57 each year. This estimate is derived from the number of airport recipients whose ACDBE awards and commitments shown on their Uniform Report of ACDBE Participation were less than their overall goals for fiscal year 2020. The FAA received total annual burden hours from two recipients, one small hub airport and another medium hub size airport, ranging from 2 to 40 hours. The average burden hour per response, based on the information received from the two recipients, is 21 hours. The FAA estimated the total annual cost burden by multiplying the total annual burden hours (21 hours × 130 respondents = 2,730) against the fully loaded state government wage rate of $72.35. The state government wage rate was taken from Bureau of Labor and Statistics' (BLS's) estimate of median wages for employees in “Management Occupations” (SOC 11-000) working in “State Government, excluding schools and hospitals” (NAICS 999200) at
Paragraph (a) of § 23.75 prohibits recipients from entering into “long-term, exclusive agreements” (LTE agreements) for concessions without prior FAA approval, based on very limited conditions which are outlined in the regulation. This general prohibition is designed to limit the situation where an entire category of business activity is not subject to competition for an extended period of time through the use of an LTE agreement. Paragraph (c) of § 23.75 requires recipients to submit to the FAA various documents and information to obtain approval from the FAA of a long-term exclusive (LTE) agreement. The required information includes the following items:
• A description of the special local circumstances that warrant a long-term, exclusive agreement;
• A copy of the draft and final leasing and subleasing or other agreements with specific provisions;
• Assurances that any ACDBE participant will be in an acceptable form, such as a sublease, joint venture, or partnership;
• Documentation that ACDBE participants are properly certified;
• A description of the type of business or businesses to be operated
• Information on the investment required on the part of the ACDBE and any unusual management or financial arrangements between the prime concessionaire and ACDBE; and
• Information on the estimated gross receipts and net profit to be earned by the ACDBE.
The collection of information under this section is necessary for FAA to carry out oversight responsibilities in determining whether special local circumstances warrant approval of an LTE agreement.
The FAA estimates seven recipients are required to submit LTE agreements to FAA for approval under § 23.75(c) each year. This estimate is derived from the total number of recipients from whom the FAA received LTE agreements in fiscal year 2020.
The FAA received total annual burden hours from eight recipients, two of each hub size (nonhub, small, medium and large), ranging from 0 to 20 hours. The average burden hour per response, based on the information received from the eight recipients, is 6.25 hours. The FAA estimated the total annual cost burden by multiplying the total annual burden hours (6.25 hours × 7 respondents = 43.75) against the fully loaded state government wage rate of $72.35. The state government wage rate was taken from Bureau of Labor and Statistics' (BLS's) estimate of median wages for employees in “Management Occupations” (SOC 11-000) working in “State Government, excluding schools and hospitals” (NAICS 999200) at
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments must be received on or before November 24, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Molly Stasko by emailing
Departmental Offices, Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before November 24, 2021 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Molly Stasko by emailing
The data collection includes large benchmark surveys (Form SHC) conducted every five years, and smaller annual surveys (Form SHCA) conducted in the non-benchmark years. The data collected under an annual survey are used in conjunction with the results of the preceding benchmark survey and of recent TIC form SLT (“Aggregate Holdings of Long-Term Securities by U.S. and Foreign Residents”) reporting to make economy-wide estimates for that non-benchmark year. Currently, the determination of who must report in the annual surveys is based primarily on the data submitted during the preceding benchmark survey and on data submitted on SLT reports. The data requested in the annual survey will generally be the same as requested in the preceding benchmark report. Form SHC is used for the benchmark survey
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before November 24, 2021 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Spencer W. Clark by emailing
Departmental Offices, Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before November 24, 2021 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Molly Stasko by emailing
1.
2.
3.
4.
5.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Health Administration, Department of Veterans Affairs, will submit the collection of information
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary:
Corporate Senior Executive Management Office, Department of Veterans Affairs.
Notice.
Agencies are required to publish a notice in the
This appointment is effective October 25, 2021.
Corporate Senior Executive Management Office, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420.
Contact Carrie Johnson-Clark, Executive Director, Corporate Senior Executive Management Office (006D), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 632-5181.
The membership of the Department of Veterans Affairs Performance Review Board is as follows:
Denis McDonough, Secretary of Veterans Affairs, approved this document on October 19, 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.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
Veterans Benefits Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before December 27, 2021.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.