Farm Service Agency
Food and Nutrition Service
Forest Service
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Children and Families Administration
Health Resources and Services Administration
Indian Health Service
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
National Park Service
Employee Benefits Security Administration
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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 the General Counsel, U.S. Department of Energy.
Final rule.
The Department of Energy (“DOE”) publishes this final rule to adjust DOE's civil monetary penalties (“CMPs”) for inflation as mandated by the Federal Civil Penalties Inflation Adjustment Act of 1990, as further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (collectively referred to herein as “the Act”). This rule adjusts CMPs within the jurisdiction of DOE to the maximum amount required by the Act.
This rule is effective on January 10, 2022.
Preeti Chaudhari, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585, (202) 586-8078,
In order to improve the effectiveness of CMPs and to maintain their deterrent effect, the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note (“the Inflation Adjustment Act”), as further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74) (“the 2015 Act”), requires Federal agencies to adjust each CMP provided by law within the jurisdiction of the agency. The 2015 Act required agencies to adjust the level of CMPs with an initial “catch-up” adjustment through an interim final rulemaking and to make subsequent annual adjustments for inflation, notwithstanding 5 U.S.C. 553. DOE's initial catch-up adjustment interim final rule was published June 28, 2016 (81 FR 41790), and adopted as final without amendment on December 30, 2016 (81 FR 96349). The 2015 Act also provides that any increase in a CMP shall apply only to CMPs, including those whose associated violation predated such increase, which are assessed after the date the increase takes effect.
In accordance with the 2015 Act, the Office of Management and Budget (OMB) must issue annually guidance on adjustments to civil monetary penalties. This final rule to adjust civil monetary penalties for 2022 is issued in accordance with applicable law and OMB's guidance memorandum on implementation of the 2022 annual adjustment.
The method of calculating CMP adjustments applied in this final rule is required by the 2015 Act. Under the 2015 Act, annual inflation adjustments subsequent to the initial catch-up adjustment are to be based on the percent change between the October Consumer Price Index for all Urban Consumers (CPI-U) preceding the date of the adjustment, and the prior year's October CPI-U. Pursuant to the aforementioned OMB guidance memorandum, the adjustment multiplier for 2022 is 1.06222. In order to complete the 2022 annual adjustment, each CMP is multiplied by the 2022 adjustment multiplier. Under the 2015 Act, any increase in CMP must be rounded to the nearest multiple of $1.
The following list summarizes DOE authorities containing CMPs, and the penalties before and after adjustment.
The 2015 Act requires that annual adjustments for inflation subsequent to the initial “catch-up” adjustment be made notwithstanding 5 U.S.C. 553.
This rule has been determined not to be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under that Executive order by the Office of Information and Regulatory Affairs of the Office of Management and Budget.
DOE has determined that this final rule is covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A5 of appendix A to subpart D, 10 CFR part 1021, which applies to a rulemaking that amends an existing rule or regulation and that does not change the environmental effect of the rule or regulation being amended. Accordingly, neither an environmental assessment nor an environmental impact statement is required.
The Regulatory Flexibility Act (5 U.S.C. 601
This final rule imposes no new information collection requirements subject to the Paperwork Reduction Act.
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments. Section 201 excepts agencies from assessing effects on State, local or tribal governments or the private sector of rules that incorporate requirements specifically set forth in law. Because this rule incorporates requirements specifically set forth in 28 U.S.C. 2461 note, DOE is not required to assess its regulatory effects under section 201. Unfunded Mandates Reform Act sections 202 and 205 do not apply to this action because they apply only to rules for which a general notice of proposed rulemaking is published. Nevertheless, DOE has determined that this regulatory action does not impose a Federal mandate on State, local, or tribal governments or on the public sector.
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 proposed rule that may affect family well-being. This rule 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.
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this rule and has determined that it would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. 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 Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 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 Executive Order 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 rule meets the relevant standards of Executive Order 12988.
The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 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 OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated 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 the Office of Information and Regulatory
As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of this final rule prior to the effective date set forth at the outset of this rulemaking. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).
The Secretary of Energy has approved publication of this final rule.
Administrative practice and procedure, Energy, Penalties.
Administrative practice and procedure, Penalties, Petroleum allocation.
Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Reporting and recordkeeping requirements.
Administrative practices and procedure, Confidential business information, Energy conservation, Incorporation by reference, Reporting and recordkeeping requirements.
Administrative practice and procedure, Energy conservation, Penalties.
Administrative practice and procedure, Electric power plants, Energy conservation, Natural gas, Petroleum.
Government contracts, Grant programs, Loan programs, Penalties.
Administrative practice and procedure, Government contracts, Penalties, Radiation protection.
Government contracts, Nuclear materials, Penalties, Security measures.
Civil penalty, Hazardous substances, Occupational safety and health, Safety, Reporting and recordkeeping requirements.
Administrative practice and procedure, Claims, Fraud, Penalties.
Administrative practice and procedure, Government contracts, National defense, Nuclear energy, Penalties, Security measures.
Decorations, medals, awards, Foreign relations, Government employees, Government property, Reporting and recordkeeping requirements.
This document of the Department of Energy was signed on December 20, 2021, by Samuel Walsh, General Counsel, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
For the reasons set forth in the preamble, DOE amends chapters II, III, and X of title 10 of the Code of Federal Regulations as set forth below.
15 U.S.C. 787
(c) * * *
(1) Any person who violates any provision of this subpart or any order issued pursuant thereto shall be subject to a civil penalty of not more than $11,630 for each violation. * * *
15 U.S.C. 751
(b) * * *
(1) Any person who violates any provision of this part or any order issued pursuant thereto shall be subject to a civil penalty of not more than $25,189 for each violation.
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
Any person who knowingly violates any provision of § 429.102(a) may be subject to assessment of a civil penalty of no more than $503 for each violation. * * *
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
(b) In accordance with sections 333 and 345 of the Act, any person who knowingly violates any provision of paragraph (a) of this section may be subject to assessment of a civil penalty of no more than $503 for each violation.
42 U.S.C. 7191
(a)
42 U.S.C. 7101
(c) * * *
(1) Any person who violates any provisions of the Act (other than section 402) or any rule in this subchapter or order under this subchapter or the Act will be subject to the following civil penalty, which may not exceed $103,050 for each violation: Any person who operates a powerplant or major fuel burning installation under an exemption, during any 12-calendar-month period, in excess of that authorized in such exemption will be assessed a civil penalty of up to $8 for each MCF of natural gas or up to $41 for each barrel of oil used in excess of that authorized in the exemption.
31 U.S.C. 1352; 42 U.S.C. 7254 and 7256; 31 U.S.C. 6301-6308; 28 U.S.C. 2461 note.
(a) Any person who makes an expenditure prohibited by this part shall be subject to a civil penalty of not less than $22,021 and not more than $220,213 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see appendix B to this part) to be filed or amended if required by this part, shall be subject to a civil penalty of not less than $22,021 and not more than $220,213 for each such failure.
(e) First offenders under paragraph (a) or (b) of this section shall be subject to a civil penalty of $22,021, absent aggravating circumstances. Second and subsequent offenses by persons shall be subject to an appropriate civil penalty between $22,021 and $220,213, as determined by the agency head or his or her designee.
42 U.S.C. 2201; 2282(a); 7191; 28 U.S.C. 2461 note; 50 U.S.C. 2410.
Any person subject to a penalty under 42 U.S.C. 2282a shall be subject to a civil penalty in an amount not to exceed $230,107 for each such violation. * * *
42 U.S.C. 2201, 2282b, 7101
* * * Subsection a. provides that any person who has entered into a contract or agreement with the Department of Energy, or a subcontract or subagreement thereto, and who violates (or whose employee violates) any applicable rule, regulations in this chapter, or order under the Act relating to the security or safeguarding of Restricted Data or other classified information, shall be subject to a civil penalty not to exceed $164,438 for each violation. * * *
(c) The Director may propose imposition of a civil penalty for violation of a requirement of a regulation or rule under paragraph (a) of this section or a compliance order issued under paragraph (b) of this section, not to exceed $164,438 for each violation.
42 U.S.C. 2201(i)(3), (p); 42 U.S.C. 2282c; 42 U.S.C. 5801
(a) A contractor that is indemnified under section 170d. of the AEA (or any subcontractor or supplier thereto) and that violates (or whose employee violates) any requirement of this part shall be subject to a civil penalty of up to $106,790 for each such violation. * * *
The revisions read as follows:
(b) * * *
(1) * * * A Severity Level I violation would be subject to a base civil penalty of up to 100% of the maximum base civil penalty of $106,790.
(2) * * * A Severity Level II violation would be subject to a base civil penalty up to 50% of the maximum base civil penalty ($53,395).
(e) * * *
(1) DOE may assess civil penalties of up to $106,790 per violation per day on contractors (and their subcontractors and suppliers) that are indemnified by the Price-Anderson Act, 42 U.S.C. 2210(d).
31 U.S.C. 3801-3812; 28 U.S.C. 2461 note.
(a) * * *
(1) * * *
(iv) Is for payment for the provision of property or services which the person has not provided as claimed, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $12,537 for each such claim.
(b) * * *
(1) * * *
(ii) Contains or is accompanied by an express certification or affirmation of the truthfulness and accuracy of the contents of the statement, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $12,537 for each such statement.
42 U.S.C. 7101
(c)
The Constitution of the United States, Article I, Section 9; 5 U.S.C. 7342; 22 U.S.C. 2694; 42 U.S.C. 7254 and 7262; 28 U.S.C. 2461 note.
(d) * * * The court in which such action is brought may assess a civil penalty against such employee in any amount not to exceed the retail value of the gift improperly solicited or received plus $22,450.
Federal Deposit Insurance Corporation (FDIC).
Notification of additional designated business relationship that meets the primary purpose exception.
The FDIC is identifying an additional business relationship, or “designated exception,” that meets the “primary purpose” exception to the deposit broker definition. The business relationship relates to specific, non-discretionary custodial services offered by third parties to depositors or depositors' agents. Entities that meet the criteria detailed below will be permitted to rely upon the primary purpose exception without submitting a notice or application.
Division of Risk Management Supervision: Rae-Ann Miller, Associate Director, (202) 898-3898,
On December 15, 2020, the FDIC adopted a final rule on brokered deposits and the interest rate restrictions that apply to less than well capitalized insured depository institutions (“IDIs”).
Section 29 of the FDI Act provides that the primary purpose exception applies to an “agent or nominee whose primary purpose is not the placement of funds with depository institutions.”
As described below, the FDIC has identified the following additional business arrangement that meets the primary purpose exception and intends
The agent or nominee is “engaged in the business of placing” customer funds at IDIs, in a custodial capacity, based upon instructions received from a depositor or depositor's agent specific to each IDI and deposit account, and the agent or nominee neither plays any role in determining at which IDI(s) to place any customers' funds, nor negotiates or set rates, terms, fees, or conditions, for the deposit account.
Over the past several months, in response to questions received, the FDIC has been considering the role that certain custodial agents play in various deposit placement arrangements. Specifically, in some deposit placement arrangements, a depositor, or a depositor's agent, uses a custodial agent in placing depositor or customer funds at IDIs. Based on the “deposit broker” definition, these agents likely meet the “engaged in the business of placing” part of the definition because they receive third party funds and place those funds at more than one IDI.
The FDIC recognizes, however, that in certain arrangements, the agent or nominee, in a custodial capacity, places deposits but has no discretion over where the deposits are placed and acts solely upon instructions given by the depositor or the depositor's agent specific to each deposit account. Moreover, in these arrangements, when the agent or nominee, acting in a custodial capacity, places deposits based upon instructions received from a depositor or depositor's agent, it does so without playing any role in determining at which banks the depositor's funds are to be placed nor does the agent negotiate or set rates, terms, fees, or conditions for the deposit account.
As such, in these specific arrangements, it is the FDIC's view that the agent or nominee's primary purpose in placing deposits at IDIs is to provide non-discretionary custodial services on behalf of the depositor or depositor's agent. Therefore, such entities will be deemed to meet the primary purpose exception. Accordingly, through this Notice, the FDIC is identifying this specific business relationship as a designated business relationship that meets the primary purpose exception. Entities that meet the criteria described in this Notice will be permitted to rely upon the exception without the submission of an application or notice.
As noted above, a custodial agent that plays any role in determining at which IDI(s) to place any customers' funds will not be eligible for the designated exception. As an example, a custodial agent that plays any role in creating, operating, or using an algorithm that is used to determine or recommend at which IDI(s) any customer funds are placed would be viewed as playing a role in determining at which banks the depositor's funds are to be placed and thus not eligible for the designated exception.
The FDIC notes that a depositor or depositor's agent that meets the deposit broker definition and uses the services of a custodial agent that meets this designated exception to place deposits would result in such deposits being classified as brokered deposits. The involvement of the non-discretionary custodial agent does not change the classification of deposits placed by, or through the facilitation of, an entity that otherwise meets the deposit broker definition.
Federal Aviation Administration (FAA), DOT.
Final special conditions, amendment.
These amended special conditions are issued for the Dassault Model Falcon 6X airplane. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is hydrophobic windshield coatings in lieu of windshield wipers. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on Dassault on January 10, 2022.
Paul Pellicano, AIR-625, Performance and Environment Section, Technical Innovation Policy Branch, Policy and Innovation Division, Federal Aviation Administration, 1701 Columbia Avenue, College Park, GA 30337; telephone and fax 404-474-5558, email
On July 1, 2012, Dassault Aviation applied for a type certificate for their new Model Falcon 5X airplane. Special conditions were issued for that design on September 15, 2015 (80 FR 55226). However, Dassault has decided not to release an airplane under the model designation Falcon 5X, instead choosing to change that model designation to Falcon 6X.
In February of 2018, due to engine supplier issues, Dassault extended the type certificate application date for their Model Falcon 5X airplane under new Model Falcon 6X. This amendment to the original special conditions reflects the model-name change. This airplane is a twin-engine business jet with seating for 19 passengers and a maximum takeoff weight of 77,460 pounds. The Dassault Model Falcon 6X airplane design remains unchanged from the Model Falcon 5X in all material respects other than different engines.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Dassault Aviation must show that the Model Falcon 6X airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-146.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they
In addition to the applicable airworthiness regulations and special conditions, the Model Falcon 6X airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).
The Dassault Model Falcon 6X airplane flight deck design incorporates a hydrophobic coating as a primary means to provide adequate windshield view in the presence of atmospheric precipitation. Reliance on such a coating, in lieu of wipers, constitutes a novel or unusual design feature for which the applicable airworthiness regulations do not contain adequate or appropriate safety standards.
Section 25.773(b)(1) requires a means to maintain a clear portion of the windshield for both pilots operating a transport-category airplane to have a sufficiently extensive view along the flight path during precipitation conditions. The regulations require this means to maintain such an area of clear vision during heavy-rain precipitation at airplane speeds up to 1.5 V
This requirement has existed in principle since 1953 in part 4b of the “Civil Air Regulations” (CAR). Section 4b.351(b)(1) required that “Means shall be provided for maintaining a sufficient portion of the windshield clear so that both pilots are afforded a sufficiently extensive view along the flight path in all normal flight attitudes of the airplane. Such means shall be designed to function under the following conditions without continuous attention on the part of the crew: (i) In heavy rain at speeds up to 1.6 V
Effective December 26, 2002, Amendment 25-108 changed the speed for effectiveness of the means to maintain an area of clear vision from up to 1.6 V
The requirement that the means to maintain a clear area of forward vision must function at high speeds and high precipitation rates is based on the use of windshield wipers as the means to maintain an adequate area of clear vision in precipitation conditions. The requirement in 14 CFR 121.313(b) and 125.213(b) to provide “. . . a windshield wiper or equivalent for each pilot station . . .” has remained unchanged since at least 1953.
The effectiveness of windshield wipers to maintain an area of clear vision normally degrades as airspeed and precipitation rates increase. It is assumed that because high speeds and high precipitation rates represent limiting conditions for windshield wipers, they will also be effective at lower speeds and precipitation levels. Accordingly, § 25.773(b)(1)(i) does not require maintenance of a clear area of forward vision at lower speeds or lower precipitation rates.
A forced airflow blown directly over the windshield has also been used to maintain an area of clear vision in precipitation. The limiting conditions for this technology are comparable to those for windshield wipers. Accordingly, introduction of this technology did not present a need for special conditions to maintain the level of safety embodied in the existing regulations.
Hydrophobic windshield coatings may depend to some degree on airflow to maintain a clear-vision area. The heavy rain and high speed conditions specified in the current rule do not necessarily represent the limiting condition for this new technology. For example, airflow over the windshield, which may be necessary to remove moisture from the windshield, may not be adequate to maintain a sufficiently clear-vision area of the windshield in low-speed flight or during surface operations. Alternatively, airflow over the windshield may be disturbed during such critical times as the approach to land, where the airplane is at a higher-than-normal pitch attitude. In these cases, areas of airflow disturbance or separation on the windshield could cause failure to maintain a clear-vision area on the windshield.
In addition to potentially depending on airflow to function effectively, hydrophobic coatings may also be dependent on water-droplet size for effective precipitation removal. For example, precipitation in the form of a light mist may not be sufficient for the coating's properties to result in maintaining a clear area of vision.
The current regulations identify speed and precipitation rate requirements that represent limiting conditions for windshield wipers and blowers, but not for hydrophobic coatings. Likewise, it is necessary to issue special conditions to maintain the level of safety represented by the current regulations.
These special conditions provide an appropriate safety standard for the hydrophobic-coating technology as the means to maintain a clear area of vision by requiring the coating to be effective at low speeds and low precipitation rates, as well as at the higher speeds and precipitation rates identified in the current regulation.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The FAA issued
As discussed above, these special conditions are applicable to the Dassault Model Falcon 6X airplane. Should Dassault apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on the Dassault Model Falcon 6X airplane. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type-certification basis for Dassault Model Falcon 6X airplanes.
The airplane must have a means to maintain a clear portion of the windshield, during precipitation conditions, enough for both pilots to have a sufficiently extensive view along the ground or flight path in normal taxi and flight attitudes of the airplane. This means must be designed to function, without continuous attention on the part of the flightcrew, in conditions from light misting precipitation to heavy rain, at speeds from fully stopped in still air, to 1.5 V
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Airbus Helicopters (Airbus) Model AS350B2 and AS350B3 helicopters. These helicopters, as modified by Vector Aerospace Helicopter Services USA (Vector), will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for helicopters. This design feature is the installation of a stability augmentation system and automatic flight control system (SAS/AFCS). The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
These special conditions are effective January 10, 2022. Send comments on or before February 24, 2022.
Send comments identified by Docket No. FAA-2021-0705 using any of the following methods:
•
•
•
•
Marie Hogestad, Aircraft Information Systems Section, AIR-620, Technical Innovation Policy Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 S 216th Street, Des Moines, WA 98198; telephone 206-231-3157; email
The FAA has determined, in accordance with 5 U.S.C. 553(b)(3)(B) and 553(d)(3), that notice of, and opportunity for prior public comment hereon are unnecessary because substantially identical special conditions have been previously subject to the public comment process in several prior instances such that the FAA is satisfied that new comments are unlikely. For the same reason, the FAA finds that good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment.
The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
The FAA will consider all comments received by the closing date for comments. The FAA may change these special conditions based on the comments received.
On February 21, 2019, Vector applied for a supplemental type certificate for the installation of SAS/AFCS on the Airbus Model AS350B2 and AS350B3 helicopters. The Airbus Model AS350B2 and AS350B3 helicopters are 14 CFR part 27 normal category, single turbine
Under the provisions of 14 CFR 21.101, Vector must show that the Airbus Model AS350B2 and AS350B3 helicopters, as changed, continue to meet the applicable provisions of the regulations listed in Type Certificate No. H9EU or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The Airbus Model AS350B2 and AS350B3 helicopters will incorporate the following novel or unusual design feature: SAS/AFCS. An AFCS is a system used to control the trajectory of an aircraft without constant input from the pilot. The AFCS allows the pilot to focus on other aspects of the operation, such as weather and other systems. SAS is another automatic control system; however, instead of maintaining the aircraft on a predetermined attitude or flight path, the SAS will reduce pilot workload by dampening the aircraft buffeting regardless of the attitude or flight path.
The Thales CAPS (SAS/AFCS) utilizes serial and parallel actuators installed in each control axis to provide an enhancement to basic aircraft stability and handling qualities and allow fully automatic vertical and lateral autopilot coupling. Consequently, the Thales CAPS installed in the Airbus Model AS350B2 and AS350B3 helicopters may include failure modes that could prevent continued safe flight and landing.
When § 27.1309(b) and (c) were promulgated, it was not envisioned that this type of rotorcraft would use systems whose failures could result in “Catastrophic” or “Hazardous/Severe-Major” failure conditions, or complex systems whose failures could result in “Major” failure conditions, as defined in FAA Advisory Circular 27-1B
The Airbus Model AS350B2 and AS350B3 helicopters type certification basis as modified by Vector does not contain adequate airworthiness standards for the SAS/AFCS. Therefore these special conditions require Vector to provide the FAA with a systems safety assessment (SSA) for the final SAS/AFCS installation configuration to adequately address the safety objectives established by the functional hazard assessment (FHA) required by § 27.1309. This process will ensure that Vector adequately address all failure conditions and effects for the installed SAS/AFCS.
The SSA process is part of the overall safety assessment process discussed in AC 27-1B and Society of Automotive Engineers document Aerospace Recommended Practice 4761,
These special conditions require that the SAS/AFCS installed on Airbus Model AS350B2 and AS350B3 helicopters meet the requirements to address the failure effects identified by the FHA adequately and subsequently verified by the SSA, within the defined design integrity requirements.
Failure conditions are classified according to the severity of their effects on the rotorcraft. Radio Technical Commission for Aeronautics, Inc. (RTCA) Document DO-178C,
The environmental qualification provides data to show that the SAS/AFCS can perform its intended function under the expected operating condition. Some of the main considerations for environmental concerns are installation locations and the resulting exposure to environmental conditions for the SAS/AFCS equipment, including considerations for other equipment that may also be affected environmentally by the SAS/AFCS equipment installation. The level of environmental qualification must be related to the severity of the considered failure conditions and effects on the rotorcraft.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Airbus Model AS350B2 and AS350B3 helicopters with the SAS/AFCS installed. Should Vector apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. H9EU to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only a certain novel or unusual design feature on the Airbus Model AS350B2 and AS350B3 helicopters. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on these helicopters.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Airbus Helicopters (Airbus) Model AS350B2 and AS350B3 helicopters, as modified by Vector Aerospace Helicopter Services USA.
For certification of the stability augmentation system and automatic flight control system (SAS/AFSC) installed on Airbus Model AS350B2 and AS350B3 helicopters, instead of the requirements of 14 CFR 27.1309(b) and (c), the following must be met:
(a) These systems and their equipment must be designed and installed so that they do not adversely affect the safety of the rotorcraft or its occupants.
(b) These systems and their associated components considered separately and in relation to other systems must be designed and installed so that:
(1) The occurrence of any catastrophic failure condition is extremely improbable;
(2) The occurrence of any hazardous failure condition is extremely remote; and
(3) The occurrence of any major failure condition is remote.
(c) Information concerning an unsafe system operating condition must be provided in a timely manner to the crew to enable them to take appropriate corrective action. An appropriate alert must be provided if immediate pilot awareness and immediate or subsequent corrective action are required. These systems and their controls, including indications and annunciations, must be designed to minimize crew errors that could create additional hazards.
Federal Trade Commission.
Final rule.
The Federal Trade Commission (“FTC” or “Commission”) is implementing adjustments to the civil penalty amounts within its jurisdiction to account for inflation, as required by law.
Effective January 10, 2022.
Marie Choi, Attorney (202-326-3368), Office of the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580.
The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015
Commission Rule 1.98 sets forth the applicable civil penalty amounts for violations of certain laws enforced by the Commission.
• Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1) (premerger filing notification violations under the Hart-Scott-Rodino Improvements Act)—Increase from $43,792 to $46,517;
• Section 11(
• Section 5(
• Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. 45(m)(1)(A) (unfair or deceptive acts or practices)—Increase from $43,792 to $46,517;
• Section 5(m)(1)(B) of the FTC Act, 15 U.S.C. 45(m)(1)(B) (unfair or deceptive acts or practices)—Increase from $43,792 to $46,517;
• Section 10 of the FTC Act, 15 U.S.C. 50 (failure to file required reports)—Increase from $576 to $612;
• Section 5 of the Webb-Pomerene (Export Trade) Act, 15 U.S.C. 65 (failure by associations engaged solely in export trade to file required statements)—Increase from $576 to $612;
• Section 6(b) of the Wool Products Labeling Act, 15 U.S.C. 68d(b) (failure by wool manufacturers to maintain required records)—Increase from $576 to $612;
• Section 3(e) of the Fur Products Labeling Act, 15 U.S.C. 69a(e) (failure to maintain required records regarding fur products)—Increase from $576 to $612;
• Section 8(d)(2) of the Fur Products Labeling Act, 15 U.S.C. 69f(d)(2) (failure to maintain required records regarding fur products)—Increase from $576 to $612;
• Section 333(a) of the Energy Policy and Conservation Act, 42 U.S.C. 6303(a) (knowing violations of EPCA § 332, including labeling violations)—Increase from $474 to $503;
• Section 525(a) of the Energy Policy and Conservation Act, 42 U.S.C. 6395(a) (recycled oil labeling violations)—Increase from $23,266 to $24,714;
• Section 525(b) of the Energy Policy and Conservation Act, 42 U.S.C. 6395(b) (willful violations of recycled oil labeling requirements)—Increase from $43,792 to $46,517;
• Section 621(a)(2) of the Fair Credit Reporting Act, 15 U.S.C. 1681s(a)(2) (knowing violations of the Fair Credit Reporting Act)—Increase from $4,111 to $4,367;
• Section 1115(a) of the Medicare Prescription Drug Improvement and Modernization Act of 2003, Public Law 108-173, as amended by Public Law 115-263, 21 U.S.C. 355 note (failure to comply with filing requirements)—Increase from $15,482 to $16,445; and
• Section 814(a) of the Energy Independence and Security Act of 2007, 42 U.S.C. 17304 (violations of prohibitions on market manipulation and provision of false information to federal agencies)—Increase from $1,246,249 to $1,323,791.
The FCPIAA, as amended, directs federal agencies to adjust each civil monetary penalty under their jurisdiction for inflation in January of each year pursuant to a cost-of-living adjustment.
The following chart illustrates the application of these adjustments to the civil monetary penalties under the Commission's jurisdiction.
These new penalty levels apply to civil penalties assessed after the effective date of the applicable adjustment, including civil penalties whose associated violation predated the effective date.
The FCPIAA, as amended, directs agencies to adjust civil monetary penalties through rulemaking and to publish the required inflation adjustments in the
Pursuant to the Congressional Review Act (5 U.S.C. 801
Administrative practice and procedure, Penalties, Trade practices.
For the reasons set forth in the preamble, the Federal Trade Commission amends title 16, chapter I, subchapter A, of the Code of Federal Regulations, as follows:
28 U.S.C. 2461 note.
This section makes inflation adjustments in the dollar amounts of civil monetary penalties provided by law within the Commission's jurisdiction. The following maximum civil penalty amounts apply only to penalties assessed after January 10, 2022, including those penalties whose associated violation predated January 10, 2022.
(a) Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1)—$46,517;
(b) Section 11(
(c) Section 5(
(d) Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. 45(m)(1)(A)—$46,517;
(e) Section 5(m)(1)(B) of the FTC Act, 15 U.S.C. 45(m)(1)(B)—$46,517;
(f) Section 10 of the FTC Act, 15 U.S.C. 50—$612;
(g) Section 5 of the Webb-Pomerene (Export Trade) Act, 15 U.S.C. 65—$612;
(h) Section 6(b) of the Wool Products Labeling Act, 15 U.SC. 68d(b)—$612;
(i) Section 3(e) of the Fur Products Labeling Act, 15 U.S.C. 69a(e)—$612;
(j) Section 8(d)(2) of the Fur Products Labeling Act, 15 U.S.C. 69f(d)(2)—$612;
(k) Section 333(a) of the Energy Policy and Conservation Act, 42 U.S.C. 6303(a)—$503;
(l) Sections 525(a) and (b) of the Energy Policy and Conservation Act, 42 U.S.C. 6395(a) and (b), respectively—$24,714 and $46,517, respectively;
(m) Section 621(a)(2) of the Fair Credit Reporting Act, 15 U.S.C. 1681s(a)(2)—$4,367;
(n) Section 1115(a) of the Medicare Prescription Drug Improvement and Modernization Act of 2003, Public Law 108-173, as amended by Public Law 115-263, 21 U.S.C. 355 note—$16,445;
(o) Section 814(a) of the Energy Independence and Security Act of 2007, 42 U.S.C. 17304—$1,323,791; and
(p) Civil monetary penalties authorized by reference to the Federal Trade Commission Act under any other provision of law within the jurisdiction of the Commission—refer to the amounts set forth in paragraphs (c), (d), (e) and (f) of this section, as applicable.
By direction of the Commission.
Department of State.
Final rule.
This final rule is issued to adjust the civil monetary penalties (CMP) for regulatory provisions maintained and enforced by the Department of State. The revised CMP adjusts the amount of civil monetary penalties assessed by the Department of State based on the December 2021 guidance from the Office of Management and Budget. The new amounts will apply only to those penalties assessed on or after the effective date of this rule, regardless of the date on which the underlying facts or violations occurred.
This final rule is effective on January 10, 2022.
Alice Kottmyer, Attorney-Adviser, Office of Management,
The Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410, as amended by the Debt Collection Improvement Act of 1996, Public Law 104-134, required the head of each agency to adjust its CMPs for inflation no later than October 23, 1996 and required agencies to make adjustments at least once every four years thereafter. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Section 701 of Public Law 114-74 (the 2015 Act) further amended the 1990 Act by requiring agencies to adjust CMPs, if necessary, pursuant to a “catch-up” adjustment methodology prescribed by the 2015 Act, which mandated that the catch-up adjustment take effect no later than August 1, 2016. Additionally, the 2015 Act required agencies to make annual adjustments to their respective CMPs in accordance with guidance issued by the Office of Management and Budget (OMB).
Based on these statutes, the Department of State (the Department) published a final rule in June 2016
On December 15, 2021, OMB notified agencies that the annual cost-of-living adjustment multiplier for 2021, based on the Consumer Price Index, is 1.06222. Additional information may be found in OMB Memorandum M-22-07 at:
Within the Department of State (title 22, Code of Federal Regulations), this rule affects four areas:
(1) Part 35, which implements the Program Fraud Civil Remedies Act of 1986 (PFCRA), codified at 31 U.S.C. 3801-3812;
(2) Part 103, which implements the Chemical Weapons Convention Implementation Act of 1998 (CWC Act);
(3) Part 127, which implements the penalty provisions of sections 38(e), 39A(c), and 40(k) of the Arms Export Control Act (AECA) (22 U.S.C. 2778(e), 2779a(c), and 2780(k)); and
(4) Part 138, which implements Section 319 of Public Law 101-121, codified at 31 U.S.C. 1352, prohibits recipients of Federal contracts, grants, and loans from using appropriated funds for lobbying the executive or legislative branches of the Federal Government in connection with a specific contract.
The PFCRA, enacted in 1986, authorizes agencies, with approval from the Department of Justice, to pursue individuals or firms for false claims. In addition to applying the annual adjustment, this rule also corrects a typographical error made in the Code of Federal Regulations (CFR). On January 14, 2020, a rule (85 FR 2020) was published in the
This rule corrects those errors, and for the 2022 inflationary adjustment uses the proper $354,106 multiplied by the inflationary adjustment for 2022 (1.06222), resulting in a maximum liability of $376,138. The amounts for the maximum penalty for each false claim or statement were correctly entered in both 2020 and 2021. Consequently, applying the 2022 multiplier, the new maximum penalty is $12,537 for each false claim or statement, up to a maximum of $376,138.
The CWC Act provided domestic implementation of the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction. The penalty provisions of the CWC Act are codified at 22 U.S.C. 6761. Applying the 2021 multiplier, the new maximum amounts are as follows: Prohibited acts related to inspections, $42,163; for recordkeeping violations, $8,433.
The Assistant Secretary of State for Political-Military Affairs is responsible
Applying the 2021 multiplier, the new maximum penalty under 22 U.S.C. 2778 (22 CFR 127.10(a)(1)(i)) is $1,272,251.
Applying the multiplier, the new maximum penalty under 22 U.S.C. 2779a (22 CFR 127.10(a)(1)(ii)) is $925,041, or five times the amount of the prohibited payment, whichever is greater.
Applying the multiplier, the new maximum penalty under 22 U.S.C. 2780 (22 CFR 127.10(a)(1)(iii)) is $1,101,061.
Section 319 of Public Law 101-121, codified at 31 U.S.C. 1352, provides penalties for recipients of Federal contracts, grants, and loans who use appropriated funds to lobby the executive or legislative branches of the Federal Government in connection with a specific contract, grant, or loan. Any person who violates that prohibition is subject to a civil penalty. The statute also requires each person who requests or receives a Federal contract, grant, cooperative agreement, loan, or a Federal commitment to insure or guarantee a loan, to disclose any lobbying; there is a penalty for failure to disclose.
Applying the 2021 multiplier, the maximum penalties for both improper expenditures and failure to disclose, is: For first offenders, $21,665; for others, not less than $22,021, and not more than $220,213.
The revised CMP amounts will go into effect on the date this rule is published. All violations for which CMPs are assessed on or after the effective date of this rule, regardless of whether the violation occurred before the effective date, will be assessed at the adjusted penalty level.
The 2015 Act directed agencies to undertake an annual review of CMPs using a formula prescribed by the statute. Annual adjustments to CMPs are made in accordance with the guidance issued by OMB. As in this rulemaking, the Department of State will publish notification of annual inflation adjustments to CMPs in the
The Department of State is publishing this rule using the “good cause” exception to the Administrative Procedure Act (5 U.S.C. 553(b)), as the Department has determined that public comment on this rulemaking would be impractical, unnecessary, or contrary to the public interest. This rulemaking is mandatory and entirely without agency discretion; it implements Public Law 114-74.
Because this rulemaking is exempt from 5 U.S.C. 553, a regulatory flexibility analysis is not required.
This rule does not involve a mandate that will result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.
This amendment will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this amendment does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.
The Department believes that benefits of the rulemaking outweigh any costs, and there are no feasible alternatives to this rulemaking. Pursuant to M-22-07, OIRA has determined that agency regulations that (1) exclusively implement the annual adjustment, (2) are consistent with this guidance, and (3) have an annual impact of less than $100 million, are generally not significant regulatory actions under E.O. 12866. Therefore, agencies are generally not required to submit regulations satisfying those criteria to OIRA for review. This regulation satisfies all of those criteria.
The Department of State has reviewed the proposed amendment in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.
The Department of State has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian Tribal governments, and
This rulemaking does not impose or revise any information collections subject to 44 U.S.C. Chapter 35.
Administrative practice and procedure, Claims, Fraud, Penalties.
Administrative practice and procedure, Chemicals, Classified information, Foreign relations, Freedom of information, International organization, Investigations, Penalties, Reporting and recordkeeping requirements.
Arms and munitions, Crime, Exports, Penalties, Seizures and forfeitures.
Government contracts, Grant programs, Loan programs, Lobbying, Penalties, Reporting and recordkeeping requirements.
For the reasons set forth above, 22 CFR parts 35, 103, 127, and 138 are amended as follows:
22 U.S.C. 2651a; 31 U.S.C. 3801
22 U.S.C. 2651a; 22 U.S.C. 6701
Sections 2, 38, and 42, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2791); 22 U.S.C. 401; 22 U.S.C. 2651a; 22 U.S.C. 2779a; 22 U.S.C. 2780; E.O. 13637, 78 FR 16129; Pub. L. 114-74, 129 Stat. 584.
22 U.S.C. 2651a; 31 U.S.C. 1352; Pub. L. 114-74, 129 Stat. 584.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for the navigable waters in the vicinity of the Coronado Bridge in San Diego Bay, San Diego, CA, in support of a U.S. Navy exercise. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards associated with the exercise. 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 5 p.m. on January 10, 2022 through 3 p.m. on January 11, 2022.
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 safety zone by January 10, 2022. This urgent safety zone is required to protect the maritime public and the surrounding waterways from hazards associated with a U.S. Navy exercise. 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
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 the potential hazards associated with the U.S. Navy exercise scheduled to begin on January 10, 2022 poses a potential safety concern in the regulated area. This rule is needed to protect persons, vessels, and the marine environment in the navigable waters of San Diego Bay during the exercise.
This rule establishes a safety zone from 5 p.m. on January 10, 2022 through 3 p.m. on January 11, 2022. The safety zone will cover all navigable waters of San Diego Bay within a 200-foot radius centered at position: 32°41′12.2″ N 117°09′40.4″ W. The purpose of the safety zone is to protect persons, vessels, and the marine environment in the navigable waters of San Diego Bay during the exercise. No vessel or person will be permitted to enter the security zone without obtaining permission from the COTP or his 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, duration, and time-of-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the San Diego Bay. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule will 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 security 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 22 hours that will prohibit entry within a 200-foot radius of a designated coordinate in the vicinity of the Coronado Bridge in San Diego Bay. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's representative by 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, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for certain navigable waters of Deep Creek and the Elizabeth River. The safey zone is needed to safeguard personnel and vessels from potential hazards associated with an incident involving an adrift barge that has struck a power transmission tower in the waterway. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Sector Virginia or designated respresentative.
This rule is effective without actual notice from January 10, 2022 until January 19, 2022. For the purposes of enforcement, actual notice will be used from January 4, 2022, until January 10, 2022.
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 LCDR Ashley Holm, Sector Virginia, Waterways Management Division, U.S. Coast Guard, Telephone: 757-668-5580, email:
On January 3, 2022, an adrift barge struck a power transmission tower in the navigable waters of Deep Creek and the Elizabeth River causing the tower to lean. The structural integrity of the transmission tower is unknown at this time creating a potential hazard to navigation including the potential for de-energized power lines to enter the waterway. Every effort is being made to ensure the structure is supported until power lines can be disconnected and the tower is removed. 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 would be impracticable and contrary to public interest. The Coast Guard received information about this potential hazard to navigation on January 3, 2022. Immediate action is needed to protect transiting vessels from the damaged transmission tower causing a potential hazard to navigation which includes the potential for de-energized power lines to enter the waterway.
For those same reasons, 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 Virginia (COTP) has determined a potential hazardous situation in Deep Creek, Southern Branch of the Elizabeth River, requires the establishment of a safety zone to protect personnel and vessels transiting the area.
The U.S. Coast Guard is establishing a temporary safety zone on certain navigable waters in the vicinity of Deep Creek, Southern Branch of the Elizabeth River north of the I-64/High Rise Bridge. This rule will be in effect from January 4, 2022, through January 19, 2022. The duration of the zone is intended to protect vessels from a damaged power transmission tower causing potential hazard to navigation in the waterway and to protect personnel performing repair and recovery. 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 safety zone being in effect for a limited duration; this is a portion of the waterway with minimal vessel traffic; and the Coast Guard will continue to make notifications via maritime broadcasts.
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 for 15 days that will prohibit entry within certain navigable waters of the Southern Branch of the Elizabeth River. 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 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/FM Chanel 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, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for all navigable waters of the Lower Mississippi River (LMR), between Mile Marker 636 and 655. The safety zone is needed to protect persons, property, and the marine environment from the potential safety hazards associated with rock placement operations in the vicinity of Modoc, AR. Entry of persons or vessels into this zone is prohibited unless authorized by the Captain of the Port Sector Lower Mississippi River or a designated representative.
This rule is effective without actual notice from January 10, 2022 through April 1, 2022. For the purposes of enforcement, actual notice will be used from January 5, 2022 until January 10, 2022.
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 MSTC Lindsey Swindle, U.S. Coast Guard; telephone 901-521-4813, 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. Immediate action is needed to protect persons and property from the potential safety hazards associated with rock placement operations. The NPRM process would delay the establishment of the safety zone until after the date of the event and compromise public safety. We must establish this temporary safety zone immediately and lack 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 Sector Lower Mississippi River (COTP) has determined that potential hazards associated with rock placement operations between Mile Marker (MM) 636 and 655, scheduled to start on January 5, 2022, will be a safety concern for all persons and vessels on the LMR between MM 636 and MM 655 through April 1, 2022. This rule is needed to protect persons, property, infrastructure, and the marine environment in all waters of the LMR within the safety zone while rock placement operations are being conducted.
This rule establishes a temporary safety zone from January 5, 2022 through April 1, 2022. The safety zone will cover all navigable waters of the Lower Mississippi River (LMR) from MM 636 to MM 655. The duration of this safety zone is intended to ensure the safety of waterway users on these navigable waters during rock placement operations.
Entry of persons or vessels into this safety zone is prohibited unless authorized by the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector LMR. Persons or vessels seeking to enter the safety zones must request permission from the COTP or a designated representative on VHF-FM channel 16 or by telephone at 314-269-2332. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative. The COTP or a designated representative will inform the public of the enforcement times and date for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.
We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, and duration of the safety zone. This safety zone will temporarily restrict navigation on the LMR from MM 636 through MM 655, from January 5, 2022 through April 1, 2022. Moreover, the rule allows vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the temporary safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please 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. It is categorically excluded from further review under paragraph L60 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 requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1, Revision No. 01.2.
(a)
(b)
(2) To seek permission to enter, contact the COTP or the COTP's representative via VHF-FM channel 16 or by telephone at 314-269-2332. 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.
(c)
(d)
Office of Information Integrity and Access, Office of Government-wide Policy (OGP), General Services Administration (GSA).
Interim rule.
This interim rule implements certain provisions of the DOTGOV Act of 2020 applicable to GSA, which was enacted as part of the Consolidated Appropriations Act, 2021. It removes provisions to the existing jurisdiction of the DOTGOV domain that had been delegated to the General Services Administration in 1997 by the Federal Networking Council with guidance in the form of internet Engineering Task Force (IETF) Informational RFC 2146, which was further expanded to include State, local, or territorial government entities in 2003 by the Intergovernmental Cooperation Act (IGCA). This interim rule implements provisions of the DOTGOV Act of 2020 that transfer ownership, management and operation of the DotGov Domain Program from the General Services Administration (GSA) to the Department of Homeland Security (DHS) Cybersecurity and Infrastructure Security Agency (CISA).
For clarification of content, contact Ms. Marina Fox, Office of Government-wide Policy, Office of Information, Integrity, and Access, at 202-253-6448, or by email at
For more than 20 years, GSA supported government organizations and worked to make .gov a trusted space.gov domain exists so that the online services of bona fide U.S.-based government organizations are easy to identify on the internet. Increasing and normalizing .gov use helps the public know where to find official government information. .gov is critical infrastructure: It's central to the availability and integrity of thousands of online services relied upon by millions of users. Since the .gov domain underpins communication with and within these institutions, cybersecurity significance of all aspects of .gov's administration has been increasing rapidly. To provide additional cybersecurity support and expand .gov usage among public entities, the DOTGOV Act of 2020 (or the DOTGOV Act of 2019) was introduced in the U.S. Senate on October 30, 2019, directing GSA to transfer the DotGov program to CISA.
On December 27, 2020, the DOTGOV Act of 2020 was signed into law and enacted as part of the Consolidated Appropriations Act, 2021 (Pub. L. 116-260). The Act transfers the DotGov (.gov) internet domain program, as operated by the General Services Administration under title 41, Code of Federal Regulations, to DHS CISA. The Act also orders that on the date CISA begins operational administration of the DotGov internet domain program, the GSA Administrator shall rescind the requirements in part 102-173 of title 41, Code of Federal Regulations applicable to any Federal, State, local, or territorial government entity, or other publicly controlled entity, including any Tribal government recognized by the Federal Government or a State government that is registering or operating a .gov internet domain. Finally, the Act orders that in place of the requirements in part 102-173 of title 41, Code of Federal Regulations, CISA, in consultation with the Director of Management and Budget (OMB), establishes and publishes a new set of requirements for the registration and operation of .gov domains.
On April 26, 2021, GSA transferred ownership, management and operation of DotGov Domain Program to the Department of Homeland Security (DHS), CISA, and CISA published new .gov domain issuance guidance for government entities in place of the existing INTERNET GOV DOMAIN requirements in FMR. To comply with the DOTGOV Online Trust in Government Act of 2020 (Title IX, Division U, H.R. 133, Consolidated Appropriations Act, 2021), GSA is amending the Federal Management Regulation to remove all requirements in part 102-173 “INTERNET GOV DOMAIN”.
The DotGov program was created in 1997, and GSA OGP became the designated authority for the top level Domain “DOT GOV” registry and registrar and the subdomain registrar for FED.US by a delegation of the National Science Foundation through consensus of the Federal Networking Council and Department of Commerce on October 1, 1997. To provide additional support, GSA entered into an agreement with the Department of the Interior's Bureau of Indian Affairs to facilitate the registration of Native Sovereign Nations (NSNs) in the dot-gov domain. In 2003, GSA began using the Intergovernmental Cooperation Act (IGCA) as the authority to provide services to U.S. state and local governments, and began issuing
Under GSA's DotGov program management and operations, domain registrations were approved based on established criteria, detailed in Federal Networking Council request for comments (RFC) 2146, May 1997 and in the Code of Federal Regulations—41 CFR Part 102-173. GSA's management of the DotGov program also included DotGov DNS Security (DNSSEC), which gives DNS queries origin authenticity and data integrity. This was accomplished by the inclusion of public keys and the use of digital signatures to DNS information. DNSSEC was deployed on the top level Gov domain root zone in January 2008 in accordance with OMB Memorandum M-08-23.
Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.
This rule is not a major rule under 5 U.S.C. 804(2). Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the Congressional Review Act or CRA, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. GSA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the CRA cannot take effect until 60 days after it is published in the
This interim rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FMR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501,
As discussed above, Congress mandated through the DOT Gov Online Trust in Government Act that GSA rescind the regulations contained in part 102-173 of title 41, Code of Federal Regulations. As Congress has directed a specific regulator outcome through statute, this constitutes good cause to issue this as an interim rule with comment period.
Government property management; Internet Gov Domain.
Department of State.
Final rule.
The Department of State (the Department) is finalizing an amendment to the Department of State Acquisition Regulation (DOSAR), to add a new contract clause relating to Department requests for examination of contractor records.
This final rule is effective February 9, 2022.
Tandra A. Jones, Senior Procurement, Email:
On July 2, 2021, the Department published a notice of proposed rulemaking, proposing to add 48 CFR part 615, section 615.209-70,
Title 41 of the U.S. Code, section 4706, provides that the head of an executive agency, acting through an authorized representative, may, for the purpose of evaluating the accuracy, completeness, and currency of certified cost or pricing data required to be submitted pursuant to 41 U.S.C. chapter 35 with respect to a contract or subcontract, examine all records of the contractor or subcontractor related to:
• The proposal for the contract or subcontract;
• the discussions conducted on the proposal;
• pricing of the contract or subcontract; or
• performance of the contract or subcontract.
The Federal Acquisition Regulation (FAR), 48 CFR 15.209(b),
• Acquisitions not exceeding the simplified acquisition threshold;
○ The acquisition of utility services at rates not exceeding those established to apply uniformly to the general public, plus any applicable reasonable connection charge; or
○ The acquisition of commercial items exempted under § 15.403-1.
The DOSAR implements the FAR (and therefore, the statute, 41 U.S.C. 4706) for the Department of State.
For these reasons, the Department is adding § 615.209-70 to the DOSAR, requiring the contracting officer to insert a new clause,
In accordance with the provisions of the Administrative Procedure Act, the Department published this rulemaking as a proposed rule, and provided 60 days for public comment. This final rule will be effective 30 days after publication.
The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on small entities. This determination is based on the fact that this rulemaking clarifies within the DOSAR the authority of the Department to examine contractor records, which is already provided by statute.
This rule is not a major rule as defined by 5 U.S.C. 804(2).
This will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Act of 1995.
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). E.O. 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Orders and finds that the benefits of this rule outweigh any costs, which the Department assesses to be minimal. As noted, this rule does not impose any new requirements on contractors. The Office of Information and Regulatory Affairs has determined that this regulation is “not significant” under E.O. 12866.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rulemaking will not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.
The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.
This rule does not add or revise any information collection requirements subject to the Paperwork Reduction Act, 44 U.S.C. chapter 35.
Administrative practice and procedure, Government procurement.
Accordingly, the Department of State amends 48 CFR chapter 6 as follows:
22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter 1.
The contracting officer shall insert the clause at 652.215-70, Examination of Records, in all solicitations and contracts other than those described in Federal Acquisition Regulation 15.209(b)(1).
22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter 1
As prescribed in 615.209-70, insert the following clause.
(a) With respect to matters related to this contract or a subcontract hereunder, the Department of State Office of the Inspector General, or an authorized representative, shall have upon request:
(1) Complete, prompt, and free access to all Contractor and Subcontractor files (in any format), documents, records, data, premises, and employees, except as limited by law; and
(2) The right to interview any current Contractor and Subcontractor personnel, individually and directly, with respect to such matters.
(b) This clause may not be construed to require the contractor or any subcontractor to create or maintain any record that the contractor or subcontractor does not maintain in the ordinary course of business or pursuant to a provision of law.
(c) The Contractor shall insert a clause containing all the terms of this clause, including this paragraph (c), in all subcontracts under this contract other than acquisitions described in Federal Acquisition Regulation 15.209(b)(1).
Federal Aviation Administration (FAA), DOT.
Rule document 2021-28089 was originally published on pages 73708 through 73712 in the issue of Tuesday, December 28, 2021. At the bottom of page 73711, Figure 3 to paragraph (g) was inadvertently split between pages 73711 and 73712. The corrected document is republished in its entirety.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Bell Textron Canada Limited Model 429 helicopters. This proposed AD was prompted by in-service reports of the loss of display and subsequent recovery of certain display units (DUs). This proposed AD would require revising the existing rotorcraft flight manual supplement (RFMS) for your helicopter and disabling the traffic alert and collision avoidance system (TCAS) POP-UP feature for certain DUs. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by February 11, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Bell Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J 1R4, Canada; telephone 1-450-437-2862 or 1-800-363-8023; fax 1-450-433-0272; email
You may examine the AD docket at
Darren Gassetto, Aerospace Engineer, COS Program Management Section, FAA, Operational Safety Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone (516) 228-7323; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Darren Gassetto, Aerospace Engineer, COS Program Management Section, FAA, Operational Safety Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone (516) 228-7323; email
Transport Canada, which is the aviation authority for Canada, has issued Transport Canada AD CF-2020-18R1, dated November 27, 2020 (Transport Canada AD CF-2020-18R1), to correct an unsafe condition for Bell Textron Canada Limited Model 429 helicopters, serial numbers 57001 through 57369, 57371, and 57373. Transport Canada advises that it has received in-service reports of the loss of display and subsequent recovery of the DU manufactured by Rogerson Kratos (RK). During an instrument flight rules approach, a Bell Textron Canada
Transport Canada also advises that the use of Map-Mode to the center DU should be limited only for Bell Textron Canada Limited Model 429 helicopters equipped with RK DUs and Garmin GTN 750/650 main software version 6.21 or later and that the use of Map-Mode should be prohibited on both the RHS DU and left-hand side DU, if installed. In addition, Transport Canada advises that a new emergency and malfunction procedure in the event of center DU failure should be implemented.
If not addressed, a DU power cycle occurring during flight and consequent momentary loss of display information on the primary flight display and other DUs could result in the unexpected loss of display of important flight parameters to the pilots, including attitude, approach, airspeed, altitude, flight director information, navigation system cues, as well as engine and rotor drive system indications.
The FAA reviewed Bell Alert Service Bulletin 429-20-51, Revision B, dated July 17, 2021, which specifies procedures for disabling the TCAS POP-UP feature for certain DUs. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with Canada, Transport Canada, its technical representative, has notified the FAA of the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of the same type design.
This proposed AD would require revising the existing RFMS for your helicopter and disabling the TCAS POP-UP feature for certain DUs.
Transport Canada AD CF-2020-18R1 requires operators to “advise all flight crews” of the changes introduced by the RFMS revision. However, this proposed AD would not specifically require that action. 14 CFR 91.9 requires that no person may operate a civil aircraft without complying with the operating limitations specified in the RFMS. Therefore, including a requirement in this AD to operate the helicopter according to the revised RFMS would be redundant and unnecessary. Further, compliance with such a requirement in an AD would be impracticable to demonstrate or track on an ongoing basis; therefore, a requirement to operate the helicopter in such a manner would be unenforceable. The flight manual supplement changes proposed in this AD would also apply to the emergency and malfunction procedures section of the existing RFMS for your helicopter. FAA regulations mandate compliance only with the operating limitations section of the flight manual. Nonetheless, the FAA recommends that flight crews of the helicopters listed in the applicability operate in accordance with the revised emergency and malfunction procedures specified in this proposed AD.
This proposed AD would also propose to require disabling the TCAS POP-UP feature for certain DUs, which is not required in Transport Canada AD CF-2020-18R1. The FAA has coordinated this requirement with Transport Canada, and Transport Canada stated that it is planning to include this action in a future rulemaking action.
The FAA estimates that this AD, if adopted as proposed, would affect 88 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.
Revising the RFMS for your helicopter takes about 1 work-hour for an estimated cost of $85 per helicopter and $7,480 for the U.S. fleet.
Disabling the TCAS POP-UP feature for your helicopter takes about 0.5 work-hours for an estimated cost of $43 per helicopter and $3,784 for the U.S. fleet.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by February 11, 2022.
None.
This AD applies to Bell Textron Canada Limited Model 429 helicopters, certificated in any category, serial numbers 57001 through 57369 inclusive, 57371, and 57373.
Joint Aircraft Service Component (JASC) Code: 3100, Indicating/Recording System.
This AD was prompted by in-service reports of the loss of display and subsequent recovery of certain display units (DUs). The FAA is issuing this AD to address a DU power cycle occurring during flight and consequent momentary loss of display information on the primary flight display and other DUs, which if not addressed, could result in the unexpected loss of display of important flight parameters to the pilots, including attitude, approach, airspeed, altitude, flight director information, navigation system cues, as well as engine and rotor drive system indications.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD: Revise the Types of Operation—Limitations (section 1-3-A.) of the existing RFMS for your helicopter to include the information in the “Limitations” procedure specified in figure 1 to paragraph (g) of this AD, revise the Configuration (section 1-5.) of the existing RFMS for your helicopter to include the information in the “Configuration” specified in figure 2 to paragraph (g) of this AD, and revise the Emergency and Malfunction Procedures (section 3) of the existing RFMS for your helicopter to include the information in the “CENTER DU FAILURE” specified in figure 3 to paragraph (g) of this AD.
Within 30 days after the effective date of this AD: Disable the TCAS POP-UP mode, including those helicopters equipped with the TCAS kit, in the parameter setup page on all RK DUs, in accordance with paragraph 3. of the Accomplishment Instructions of Bell Alert Service Bulletin 429-20-51, Revision B, dated July 17, 2021.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (j)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Darren Gassetto, Aerospace Engineer, COS Program Management Section, FAA, Operational Safety Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone (516) 228-7323; email
(2) For service information identified in this AD, contact Bell Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J 1R4, Canada; telephone 1-450-437-2862 or 1-800-363-8023; fax 1-450-433-0272; email
(3) The subject of this AD is addressed in Transport Canada AD CF-2020-18R1, dated November 27, 2020. You may view the Transport Canada AD on the internet at
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) is proposing to amend its regulations to implement the provisions of the Jeff Miller and Richard Blumenthal Veterans Health Care and Benefits Improvement Act of 2016. In this proposed rule, we would add new approval requirements as specified in the statutory provisions for accredited and nonaccredited programs designed to prepare an individual for licensure and certification in a State. We would also implement VA's new authority to waive the added approval requirements under certain circumstances and adjust the authority of a State approving agency to add new approval criteria. In addition, we would add a circumstance for disapproval of a program designed to prepare an individual for licensure and certification, as prescribed by the law we are implementing.
Comments must be received on or before March 11, 2022.
Comments may be submitted through
Cheryl Amitay, Chief, Policy and Regulation Development Staff, (225C), Education Service, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-9800. (This is not a toll-free telephone number.)
Prior to the passage of the Jeff Miller and Richard Blumenthal Veterans Health Care and Benefits Improvement Act of 2016 (Pub. L. 114-315), there were discrepancies among the States regarding the requirements for approval of programs of education designed to prepare someone for State licensure or certification or board certification. There were reports of GI Bill participants who were unable to secure employment following graduation because their program of education did not meet the standards required for licensure, certification, State board approval, or employment. There were also concerns that State approving agencies (SAAs) were exercising their authority to subject nonaccredited courses to additional approval criteria as they deemed necessary in a manner that treated private for-profit educational institutions substantially and detrimentally differently than their public or private not-for-profit counterparts. Further, while SAAs had the authority to impose additional approval criteria for approval of nonaccredited courses under 38 U.S.C. 3676, they had no authority to deem additional approval criteria necessary with respect to accredited courses.
To addresses these concerns, Public Law 114-315, sec. 409, amended 38 U.S.C. 3676(c), further amended by the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, Public Law 116-315, sec. 1016, to add the following approval requirements for educational programs that are designed to prepare individuals for licensure or certification in a State, regardless of whether the program is “deemed approved” (meaning it satisfies the requirements of 38 U.S.C. 3672(b)(2)(A)):
○ If a course is designed to prepare an individual for licensure or certification in a State, the course must meet all instructional curriculum licensure or certification requirements of such State.
○ If a course is designed to prepare an individual for employment pursuant to standards developed by a board or agency of a State in an occupation that requires approval, licensure, or certification, the course must meet such standards.
○ If a course is designed to prepare an individual for licensure to practice law in a State, the course must be accredited by a specialized accrediting agency for programs of legal education or association recognized by the Secretary of Education under subpart 2 of part H of title IV of the Higher Education Act of 1965 (20 U.S.C. 1099b), from which recipients of law degrees from such accredited programs are eligible to sit for a bar examination in any State (at this time, the only organization that satisfies this criterion is the American Bar Association).
Section 409 also added the provision in 38 U.S.C. 3676(f)(1) that allows the Secretary of VA to waive the additional approval requirements if he or she determines all of the following:
○ The educational institution is not accredited by an agency or association recognized by the Secretary of Education.
○ The course did not meet the additional requirements at any time during the 2-year period preceding the date of the waiver.
○ The waiver furthers the purposes of the educational assistance programs administered by the Secretary or would further the education interests of individuals eligible for assistance under such programs.
○ The educational institution does not provide any commission, bonus, or other incentive payment based directly or indirectly on success in securing enrollments or financial aid to any persons or entities engaged in any student recruiting or admission activities or in making decisions regarding the award of student financial assistance, except for the recruitment of foreign students residing in foreign countries who are not eligible to receive Federal student assistance.
We would add the new requirements for approval of educational programs designed to prepare individuals for licensure or certification contained in the amended sec. 3676(c) to 38 CFR 21.4253(d)(9) and 38 CFR 21.4254(c)(14). We would also specify in 38 CFR 21.4253(d)(9) and 38 CFR 21.4254(c)(14) that the Secretary or designee may waive the added approval requirements if conditions specified in sec. 3676(f)(1) are met and indicate the process for applying for a waiver. The waiver decision will be made by the Education Service Director or other designated personnel.
Section 409 also amended 38 U.S.C. 3679 to require VA or an SAA to disapprove a course of education designed to prepare an individual for licensure or certification unless the educational institution providing the course publicly discloses “in a prominent manner” any conditions or additional requirements, including
Furthermore, under sec. 409(f), an individual enrolled in a program subject to disapproval under any of the amendments made by sec. 409 must be allowed to complete any program if he or she remains continuously enrolled at the same educational institution (
Section 410 of Public Law 114-315 adjusted the SAAs' authority to add additional approval criteria for approving either accredited or nonaccredited programs by requiring SAAs to consult with VA before imposing such criteria and by requiring a VA determination about the criteria. VA must find the criteria both (1) necessary and (2) equitable in its treatment of public, private, and proprietary for-profit educational institutions. Therefore, in proposed §§ 21.4253(d)(10) and 21.4254(c)(15), we would include a requirement that prior to an SAA being allowed to impose any additional criteria, the SAA must present a written proposal to the Secretary, or designee, justifying the need for the additional criteria. The proposal is necessary to ensure that any additional criteria imposed by an SAA are necessary and equitable regardless of whether the criteria are imposed on public, private, or for-profit institutions. The proposal would have to describe the problem and explain how the imposition of the additional criteria will correct the problem. It would also have to state whether State or Federal laws, regulations, or policies require the imposition of the additional criteria, and explain whether alternative means of correcting the problem were considered. In addition, the written proposal would have to contain an attestation that the additional criteria will be equitable regardless of whether they are imposed on public, private, or for-profit institutions. The Secretary, or designee, would determine whether the criteria are necessary and equitable and could change the determination if, after implementation, it becomes apparent that the criteria were unnecessary or treated schools inequitably in practice.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866.
The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at
The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). VA has determined that, although there may be a number of educational training facilities and SAAs considered small entities which may be affected by this proposed rule, they would not be not significantly impacted by this rule.
Allowing waiver of the added approval requirements under certain circumstances, as well as requiring SAAs to present a written proposal to VA justifying the need for adding additional approval criteria for approving either accredited or nonaccredited programs, would likely have some impact on both educational training institutions and SAAs. However, the impact would be minimal. VA estimates that five educational facilities will request a waiver per year and that the estimated cost for any educational institution seeking a waiver will be less than $300. Also, VA estimates that approximately eleven requests per year from SAAs will be received to add additional approval criteria and the estimated cost for SAAs making these requests will also be less than $300. Therefore, the number of schools and SAAs affected is not substantial and the impact on each is not significant. Therefore, under 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.
This proposed rule includes provisions that would constitute new collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that require approval by the Office of Management and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review and approval.
OMB assigns control numbers to collections of information it approves. VA 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. If OMB does not approve the collections of information as requested, VA will immediately remove the provisions containing a collection of information or take such other action as is directed by OMB.
Comments on the collections of information contained in this rulemaking should be submitted through
OMB is required to make a decision concerning the collections of information contained in this
The Department considers comments by the public on proposed collections of information in—
• Evaluating whether the proposed collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;
• Evaluating the accuracy of the Department's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing the burden of the collections of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The collections of information contained in 38 CFR 21.4253(d)(9), 21.4254(c)(14), 21.4253(d)(10), and 38 CFR 21.4254(c)(15) are described immediately following this paragraph.
* To estimate the total information collection burden cost, VA used the Bureau of Labor Statistics (BLS) median hourly wage for “all occupations” of $27.07 per hour. This information is available at:
* To estimate the total information collection burden cost, VA used the Bureau of Labor Statistics (BLS) median hourly wage for “all occupations” of $27.07 per hour. This information is available at:
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.027, Post-9/11 Veterans Educational Assistance; 64.028, Post-9/11 Veterans Educational Assistance; 64.032, Montgomery GI Bill Selected Reserve; Reserve Educational Assistance Program; 64.117, Survivors and Dependents Educational Assistance; 64.120, Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-Volunteer Force Educational Assistance.
Administrative practice and procedure, Armed forces, Claims, Colleges and universities, Education, Employment, Schools, Veterans, Vocational education, Vocational rehabilitation.
Denis McDonough, Secretary of Veterans Affairs, approved this document on December 20, 2021, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 21 as set forth below:
10 U.S.C. 2141 note, ch. 1606; 38 U.S.C. 501(a), chs. 30, 32, 33, 34, 35, 36, and as noted in specific sections.
(d) * * * The State approving agency may approve the application of the school when the school and its accredited courses are found to have met the following criteria and additional reasonable criteria established by the State approving agency if the Secretary or designee, in consultation with the State approving agency, approves the additional criteria as necessary and equitable in its treatment of public, private, and proprietary for-profit educational institutions:
(9)(i) For a course designed to prepare an individual for licensure or certification in a State, the course meets all instructional curriculum licensure or certification requirements of such State.
(ii) For a course designed to prepare an individual for licensure to practice law in a State, the course is accredited by a specialized accrediting agency for programs of legal education or association recognized by the Secretary of Education under subpart 2 of part H of title IV of the Higher Education Act of 1965 (20 U.S.C. 1099b), from which recipients of law degrees from such accredited programs are eligible to sit for a bar examination in any State.
(iii) For a course designed to prepare an individual for employment pursuant to standards developed by a board or agency of a State in an occupation that requires approval, licensure, or certification, the course meets such standards.
(iv) An educational institution may apply, through their State approving agency of jurisdiction, to the Secretary or designee for a waiver of the requirements of this paragraph (d)(9). The State approving agency will forward an application for waiver, together with its recommendation for granting or denying the application, to the Secretary or designee. The Secretary or designee may grant a waiver upon a finding that all of the following criteria have been met:
(A) The educational institution is not accredited by an agency or association recognized by the Department of Education.
(B) The course did not meet the requirements of this paragraph (d)(9) at any time during the 2-year period preceding the date of the waiver.
(C) The waiver furthers the purposes of the educational assistance programs administered by VA or would further the education interests of individuals eligible for assistance under such programs.
(D) The educational institution does not provide any commission, bonus, or other incentive payment based directly or indirectly on success in securing enrollments or financial aid to any persons or entities engaged in any student recruiting or admission activities or in making decisions regarding the award of student financial assistance, except for the recruitment of foreign students residing in foreign countries who are not eligible to receive Federal student assistance.
(10) Before requiring a school and its accredited courses to meet any additional criteria, the State approving agency must present a written proposal to the Secretary or designee justifying the need for the additional criteria and containing an attestation that the criteria will treat all schools equitably, regardless of whether they are public, private or for-profit institutions. The Secretary or designee will determine whether the additional criteria are necessary and treat schools equitably based on the proposal and any additional information submitted. The Secretary or designee may change the determination at any time if, after implementation, it becomes apparent that the criteria are unnecessary or schools are treated inequitably under the criteria.
(i) The written proposal must contain a description of the need for the additional criteria and an explanation of how the imposition of the additional criteria would remedy the problem. The proposal must also contain a statement concerning whether State or Federal laws, regulations, or policies require the imposition of the additional criteria and an explanation of the consideration of any alternative means to achieve the same goal as the additional criteria.
(ii) The Secretary or designee may request such additional information from the State approving agency as the Secretary or designee deems appropriate before determining whether the criteria are necessary and treat schools equitably.
(c) * * *
(14)(i) For a course designed to prepare an individual for licensure or certification in a State, the course meets all instructional curriculum licensure or certification requirements of such State.
(ii) For a course designed to prepare an individual for licensure to practice law in a State, the course is accredited by a specialized accrediting agency for programs of legal education or association recognized by the Secretary of Education under subpart 2 of part H of title IV of the Higher Education Act of 1965 (20 U.S.C. 1099b), from which recipients of law degrees from such accredited programs are eligible to sit for a bar examination in any State.
(iii) For a course designed to prepare an individual for employment pursuant to standards developed by a board or agency of a State in an occupation that requires approval, licensure, or certification, the course meets such standards.
(iv) An educational institution may apply, through their State approving agency of jurisdiction, to the Secretary or designee for a waiver of the requirements of this paragraph (c)(14). The State approving agency will forward an application for waiver, together with its recommendation for granting or denying the application, to the Secretary or designee. The Secretary or designee may grant a waiver upon a finding that all of the following criteria have been met:
(A) The educational institution is not accredited by an agency or association recognized by the Department of Education.
(B) The course did not meet the requirements of this paragraph (c)(14) at any time during the 2-year period preceding the date of the waiver.
(C) The waiver furthers the purposes of the educational assistance programs administered by VA or would further the education interests of individuals eligible for assistance under such programs.
(D) The educational institution does not provide any commission, bonus, or other incentive payment based directly or indirectly on success in securing enrollments or financial aid to any persons or entities engaged in any student recruiting or admission activities or in making decisions regarding the award of student financial assistance, except for the recruitment of foreign students residing in foreign countries who are not eligible to receive Federal student assistance.
(15) Such additional reasonable criteria as may be deemed necessary by the State approving agency if the Secretary or designee, in consultation with the State approving agency, approves the additional criteria as necessary and equitable in its treatment of public, private, and proprietary for-profit educational institutions. The Secretary or designee will determine whether the additional criteria are necessary and treat schools equitably
(i) Before requiring a school and its nonaccredited courses to meet any additional criteria, the State approving agency must present a written proposal to the Secretary or designee justifying the need for the additional criteria and containing an attestation that the criteria will treat all schools equitably, regardless of whether they are public, private or for-profit institutions. The written proposal must contain a description of the need for the additional criteria and an explanation of how the imposition of the additional criteria would remedy the problem. The proposal must also contain a statement concerning whether State or Federal laws, regulations, or policies require the imposition of the additional criteria and an explanation of the consideration of any alternative means to achieve the same goal as the additional criteria.
(ii) The Secretary or designee may request such additional information from the State approving agency as the Secretary or designee deems appropriate before determining whether the criteria are necessary and treat schools equitably.
(iii) The Secretary or designee may change the determination at any time if, after implementation, it becomes apparent that the criteria are unnecessary or schools are treated inequitably under the criteria.
(e) The Secretary or the appropriate State approving agency will disapprove a licensing and certification program of education if the educational institution providing the program of education fails to publicly disclose in a prominent manner any conditions or additional requirements, including training, experience, or examinations required to obtain the license, certification, or approval for which the program of education is designed to provide preparation.
(1) The Secretary will determine whether a disclosure is sufficiently prominent; however, at a minimum, the educational institution must publish the conditions or requirements on a publicly facing website and in their catalog, and include them in any publication (regardless of medium) which explicitly mentions “educational assistance benefits for servicemembers (and their dependents) or veterans (and their dependents)” or which, in the view of the Secretary, is intended for VA educational assistance beneficiaries.
(2) Individuals continuously enrolled at the same educational institution pursuing a program of education subject to disapproval under paragraph (e) of this section may complete the program of education.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing revisions to its pesticide tolerance crop grouping regulations, which allow the establishment of tolerances for multiple related crops based on data from a representative set of crops. EPA is proposing amendments to Crop Group 6: Legume Vegetables; Crop Group 7: Foliage of Legume Vegetables; Crop Group 15: Cereal Grains; and Crop Group 16: Forage, Fodder and Straw of Cereal Grains. EPA is also proposing amendments to the associated commodity definitions. This is the sixth in a series of planned crop group updates expected to be prepared over the next several years.
Comments must be received on or before March 11, 2022.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2006-0766, through the Federal eRulemaking Portal at
Due to the public health concerns related to COVID-19. The EPA Docket Center (EPA/DC) and Reading Room is open to visitors by appointment only. 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
Sara Kemme; Mission Support Division (7101M), Office of Program Support, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number 202-566-1217; email address:
You may be potentially affected by this action if you are an agricultural producer, pesticide manufacturer, or food manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532)
The EPA is initiating this rulemaking to amend the existing crop grouping regulations under section 408(e)(1)(C) of the Federal Food, Drug, and Cosmetic Act (FFDCA), which authorizes EPA to establish “general procedures and requirements to implement [section 408].” 21 U.S.C. 346a(e)(1)(C). Under FFDCA section 408, EPA is authorized to establish tolerances for pesticide chemical residues in food. EPA establishes tolerances for each pesticide based on data on the pesticide residues and the potential risks to human health posed by that pesticide. A tolerance is the maximum permissible residue level established for a pesticide in raw agricultural commodities and processed foods. The crop group regulations currently in 40 CFR 180.40 and 180.41 enable the establishment of tolerances for a group of crops based on residue data for certain crops that are representative of the group.
Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
When preparing and submitting your comments, see the commenting tips at
This proposed rule is the sixth in an ongoing series of crop group updates, including additional updates expected to be promulgated in the next several years. EPA is proposing revisions to EPA's regulations governing crop group tolerances for pesticides. Specifically, this rule is proposing revisions to Crop Group 6: Legume Vegetables (Succulent or Dried) Group; Crop Group 7: Foliage of Legume Vegetables Group; Crop Group 15: Cereal Grains Group; and Crop Group 16: Forage, Fodder, and Straw of Cereal Grains Group. The proposed changes include changes to the terminology in the names of Crop Groups 6, 7 and 16, the addition of commodities, and changes that advance international harmonization. In addition, the proposed changes include revisions to the subgroups for Crop Group 6 and the addition of subgroups for Crop Group 15. EPA is also proposing additions and revisions to associated commodity definitions at 40 CFR 180.1(g). Unit III of this proposal includes a detailed description of the proposed changes.
EPA sets tolerances, which are the maximum amount of a pesticide allowed to remain in or on a food, as part of the process of regulating pesticides that may leave residues in food. Crop groups are established when residue data for certain representative crops are used to establish pesticide tolerances for a group of crops that are botanically or taxonomically related. Representative crops of a crop group or subgroup are those crops whose residue data can be used to establish a tolerance for the entire group or subgroup.
With the establishment of crop groups such as the ones being revised in this proposed rule, EPA seeks to:
• Enhance our ability to conduct food safety evaluations on crops for tolerance-setting purposes;
• Promote global harmonization of food safety standards;
• Reduce regulatory burden; and
• Ensure food safety for agricultural goods.
EPA prepared an Economic Analysis which concludes that this is a burden-reducing regulation (Ref. 1). Crop grouping permits the results of pesticide residue studies for some crops, called representative crops, to be applied to other, similar crops in the group. EPA expects these revisions to promote greater use of crop groupings for tolerance-setting purposes, both domestically and in countries that export food to the U.S.
The estimate of cost savings from the proposed revisions to Crop Group 6: Legume Vegetables (Succulent or Dried) Group are around $38.0 million annually. There are no cost savings from the proposed revisions to Crop Group 7: Foliage of Legume Vegetables Group. The estimate of cost savings from the proposed revisions to Crop Group 15: Cereal Grains Group are around $89.9 million annually. The estimate of cost savings from the proposed revisions to Crop Group 16: Forage, Fodder, and Straw of Cereal Grains Group are around $76.7 million annually. The total estimated cost savings from the rule is $204.6 million annually. This cost savings value should be considered an overestimate. The methodology used to estimate cost savings implicitly assumes that all of the new crops being added to the group have a residue field trial that is replaced by the residue field trials of the representative crops. However, some of these crops would never have been the subject of a pesticide tolerance petition that required a residue field trial. Therefore, it does not reflect actual savings, but merely a potential savings if a registrant or Interregional Research Project Number 4 (IR-4) were planning to submit residue field trial data to support a tolerance petition.
The Agency anticipates that revisions to the crop grouping program will result in no appreciable costs or negative impacts to consumers, specialty crop producers, pesticide registrants, the environment, or human health. In particular, specialty crop producers may gain access to pesticides that are registered on the crop group that would not have been available when the crop was not part of the group. Although this rule may make it possible to get a pesticide tolerance on a larger number of crops within a group, it will not necessarily increase the amount of pesticides released into the environment and will expand the choice of pesticides for crop producers, which may result in the use of safer pesticides.
EPA is authorized to establish tolerances under FFDCA section 408 (21 U.S.C. 346a). EPA establishes pesticide tolerances only after determining that they are safe,
Traditionally, tolerances are established for a specific pesticide and commodity combination. However, under EPA's crop grouping regulations (40 CFR 180.40 and 180.41), a single tolerance may be established that applies to a group of related commodities. For example, Crop Group 15: Cereal Grains Group is proposed to include 60 commodities. Crop group tolerances may be established based on residue data from designated representative commodities within the group. Representative commodities are selected based on EPA's determination that they are likely to bear the maximum level of residue that could occur on any crop within the group. The proposed representative commodities for Crop Group 15-XX are wheat, barley, field corn, sweet corn, rice, and either grain sorghum or proso millet. Once a crop group tolerance is established, the tolerance level applies to all commodities within the group.
This proposed rule is the sixth in a series of planned crop group amendments expected to be completed over the next several years. The previous five crop group amendment rules were finalized on December 7, 2007 (72 FR 69150) (FRL-8343-1); December 8, 2010 (75 FR 76284) (FRL-8853-8); August 22, 2012 (77 FR 50617)
The proposed changes identified in this action have been informed by petitions developed by the International Crop Grouping Consulting Committee (ICGCC) workgroup and submitted to EPA by a nation-wide cooperative project, IR-4 (Refs. 2 and 3). The petitions and the supporting monographs, as well as EPA's analyses of the petitions (Refs. 4-11), are included in the docket for this action. Additional petitions seeking future amendments and changes to the crop grouping regulations (40 CFR 180.40 and 180.41) from the ICGCC workgroup and IR-4 have been submitted and are being evaluated by EPA.
In 2007, EPA prepared an Economic Analysis (EA) of the potential costs and benefits associated with the first proposed rule issued in this series of updates, entitled “Economic Analysis Proposed Expansion of Crop Grouping Program” (Ref. 12). EPA considers the findings of the 2007 EA to apply to each subsequent crop group rulemaking, including this proposal, due to the similarity in purpose and scope of each of those rulemakings.
As discussed in the 2007 EA, EPA believes that crop grouping rulemakings are burden-reducing and cost-saving regulations. However, the impacts in the 2007 EA were measured primarily on a qualitative basis. For example, the crop grouping rules provide for greater sharing of data by permitting the results from a magnitude of residue field trial study in one crop to be applied to other, similar crops. The primary beneficiaries are minor crop producers and pesticide registrants. Minor crop producers benefit because lower registration costs will encourage more products to be registered on minor crops, providing additional tools (
While the 2007 EA provides a qualitative assessment of the benefits of the crop grouping rulemaking activities, EPA has developed a new burden reduction and cost savings assessment specific to the crop group amendments proposed in this rule, titled “Burden Reduction from the Proposed Expansion of Crop Grouping Program” (Ref. 1). Although there are some uncertainties in the evaluation, for this final rule, EPA estimates that the cost savings from these proposed amendments to be approximately $204.6 million annually.
EPA's full analysis on the estimated burden reductions and cost savings is provided in the docket for this action at regulations.gov using Docket ID EPA-HQ-OPP-2006-0766. EPA welcomes feedback on the assumptions made in developing these estimates, as well as any additional information that may help the Agency to refine these estimates.
EPA's Office of Pesticide Programs' Chemistry Science Advisory Council (ChemSAC), an internal Agency peer review committee, provided detailed analyses for each proposed crop group to IR-4, Canada's Pest Management Regulatory Agency (PMRA), and the government of Mexico for their review and comment, and invited these parties to participate in the ChemSAC meeting to finalize the EPA's recommendations on responses to each IR-4 petition. The results of the ChemSAC meetings finalizing the recommendations for proposal in this action are provided in the docket (Ref. 4-11).
PMRA has indicated that it will, in parallel with the United States effort and under the authority of Canada's Pest Control Products (PCP) Act (2002), establish equivalent crop groups. Additionally, once the new crop groups become effective in the United States, Mexico will have them as a reference for the establishment of maximum residue limits in Mexico.
When Codex establishes Maximum Residue Limits (MRL) for a pesticide chemical residue and EPA is not establishing tolerances at that same level, section 408 of the FFDCA calls for EPA to provide an explanation for its reasons for departing from that Codex level. In implementing this provision, EPA works to harmonize tolerance determinations with a Codex MRL whenever possible. This activity facilitates free trade and international movement of goods produced in the United States. When a Codex crop group is established, EPA will work to harmonize with Codex to the extent feasible. Both Canada and Codex have adopted their own crop group schemes that are synchronized with and complement the efforts and goals of the crop grouping rulemaking efforts.
The generic crop group regulations include an explicit scheme for how revised crop groups will be organized in the regulations. In brief, the regulations at 40 CFR 180.40(j) specify that when a crop group is amended in a manner that expands or contracts its coverage of commodities, EPA will retain the pre-existing crop group in 40 CFR 180.41 and insert the new, related crop group immediately after the pre-existing crop group in the CFR. Although EPA will initially retain pre-existing crop groups that have been superseded by new crop groups, 40 CFR 180.41(j) states that EPA will not establish new tolerances under the pre-existing groups and that EPA will convert tolerances for any pre-existing crop groups to tolerances with the coverage of the new crop group. Conversions to revised crop groups are implemented through the registration review process and in the course of
This unit explains the proposed amendments to the crop group regulations.
EPA is proposing to amend “Crop Group 6: Legume Vegetables (Succulent or Dried)” to update the commodity listings in the group. EPA also proposes to name the new crop group “Crop Group 6-XX Legume Vegetable Group.” The following paragraphs describes this crop grouping in more detail.
Based on similarities of growth habits and edible plant parts that are exposed to pesticides, geographical distribution, comparison of established tolerances, and for international harmonization purposes, EPA is proposing to include 121 commodities in Legume Vegetable Crop Group 6-XX. The commodities are distinguished based on the specific plant part that is edible, such as edible podded beans and peas, succulent shelled beans and peas, and dried seeds of beans and peas, which is consistent with how legume vegetables are classified. The commodities proposed for inclusion in Crop Group 6-XX are as follows: African yam bean, dry seed,
This list of 121 commodities includes several new commodities that EPA is proposing to add to Crop Group 6-XX. These include the African yam bean,
Updating and expanding the commodities included in Crop Group 6-XX will have many benefits. Many minor legume orphan crops have become more popular in some countries and areas today than they were over twenty years ago. Increased globalization of trade has resulted in additional commodities to be enjoyed that are grown worldwide. Being excluded from the crop groups means that tolerances requested for these commodities would have to be established individually and based on separate residue studies. Also, this crop group regulation will facilitate the establishment of pesticide tolerances for residues of numerous pesticides that are needed to control a wide diversity of bean and pea pests, as well as to facilitate integrated pest management (IPM). Those IPM programs incorporate reduced risk pesticides, organic and biopesticides, as well as cultural practices to reduce the development of pesticide resistance. Some of these “minor” crops have great potential to be
In addition to these commodity additions, EPA is proposing to remove “Succulent or Dried” from the old group name “Legume Vegetables (Succulent or Dried)” since this qualification is not needed. EPA does not believe these terms belong in the title because they are unclear (for example “succulent” would include the edible podded and succulent shelled). For years, this phrase has not been used to describe the crop group when establishing crop group 6 tolerances.
EPA is proposing the following seven representative commodities for proposed Crop Group 6-XX: Bean (
Representative commodities are those crops that are most likely to contain the highest residues, are major in terms of production and/or consumption, and are similar in morphology, growth habit, pest problems and edible portion to the related commodities within a group or subgroup. Based on these criteria, EPA is proposing to add
In addition to adding
Bean (
This revision does not imply an increase in data requirements. The term “succulent cultivar” in the current representative commodity expression for Crop Group 6 has always been understood to mean both “edible podded cultivar” and “succulent shelled cultivar.” The current Crop Field Trial Guideline (Guideline 860.1500) provides some guidance on how these terms have been used together. In Table 2 of the Guideline, the entry for legume vegetables (succulent or dried) requires 12 field trials for the representative commodities of succulent bean and 9 field trials for the representative commodity succulent pea, although the footnote for each of those requirements clarifies that the actual number of field trials is divided between edible podded beans (or peas) and succulent shelled beans (or peas). (Refs. 14 and 15). While EPA's proposal for the updated Crop Group 6 explicitly identifies edible podded representative commodities as separate from succulent shelled representative commodities, the number of field trials is intended to remain the same.
Currently, Legume Vegetables (Succulent or Dried) Crop Group 6 includes three subgroups:
• Subgroup 6A—Edible podded legume vegetables subgroup,
• Subgroup 6B—Succulent shelled pea and bean subgroup, and
• Subgroup 6C—Dried shelled pea and bean (except soybean) subgroup.
Nine legume subgroups were originally proposed at the 2002 IR-4/USDA International Crop Grouping Symposium. (Ref. 16). Those nine subgroups included the original three subgroups, plus an additional six subgroups that divided the original three subgroups into separate bean and pea subgroups. This proposal, however, only includes six subgroups (the original three subgroups divided into their respective bean and pea subgroups). EPA believes these subgroups should provide a better understanding of which legumes are included in the appropriate subgroup and provide greater flexibility and efficiency in obtaining subgroup tolerances. Moreover, EPA believes the proposed reorganization of the subgroups would put EPA's regulations in better alignment with the legume subgroups established by Codex.
Legume vegetables are vegetables with edible parts that are harvested above ground. Some legumes have edible parts that are enclosed in pods, which are removed before marketing or consumption; these are called succulent shelled or dried shelled legumes, depending on whether they have edible succulent immature seeds which are removed from the pod or mature dried seeds which are removed from the pod. In both cases, the pod is discarded. For other legumes, the edible parts include the pod, which is generally consumed; these are classified as edible podded legumes. The types of beans and peas and how they are consumed make for logical crop subgroups.
Therefore, EPA proposes the following six subgroups:
• Crop Subgroup 6-XXA, Edible podded bean subgroup;
• Crop Subgroup 6-XXB, Edible podded pea subgroup;
• Crop Subgroup 6-XXC, Succulent shelled bean subgroup,
• Crop Subgroup 6-XXD, Succulent shelled pea subgroup;
• Crop Subgroup 6-XXE, Dried shelled bean, except soybean, subgroup; and
• Crop Subgroup 6-XXF, Dried shelled pea subgroup.
EPA notes that under the proposal “soybean, seed” stands by itself as a member of Crop Group 6 but is not proposed to be in one of the subgroups. Soybean seed is a major crop with many uses and is an important dietary item. EPA does not expect the residues to be the same for soybean seed as they would be for the subgroups. (Refs. 9 and 10). EPA notes that vegetable soybean (edamame) is in subgroup 6-XXA (edible podded beans) and 6-XXC (succulent shelled beans).
The edible podded bean subgroup 6-XXA and edible podded pea subgroup 6-XXB are based on the entire unripe pod with its small immature (green) seeds. The succulent shelled bean subgroup 6-XXC and succulent shelled pea subgroup 6-XXD have edible succulent immature seeds, which are removed from the pod, and the pod is discarded. The dried shelled bean subgroup 6-XXE and the dried shelled pea subgroup 6-XXF have mature dried seeds, which are removed from the dried pods. The respective representative commodities and commodity listings are provided in (i) through (vi).
EPA is proposing to include the following commodities in new subgroup 6-XXA: Bean (
EPA is proposing the following commodities in new subgroup 6-XXB: Pea (
EPA is proposing the following commodities in new subgroup 6-XXC: Bean (
EPA is proposing the following commodities in new subgroup 6-XXD: Chickpea; lentil; Pea (
EPA is proposing the following commodities in new subgroup 6-XXE: African yam bean; American potato bean; Bean (
EPA is proposing the following commodities in new subgroup 6-XXF: Pea (
To ensure commodities are clearly defined and specific to which part of the plant the commodity covers, EPA is proposing to modify and add several definitions to 40 CFR 180.1(g) that are relevant to Crop Groups 6 and 7.
EPA proposes to revise the commodity definition entries for “Bean,” “Bean, succulent,” “Pea,” and “Pea, succulent.” For “Bean” and “Pea,” the revisions to the commodity definitions reflect the updates to the commodity listings in the proposed Crop Groups 6-XX and 7-XX since the commodities are more clearly identified. The current definition-based tolerance listings for “Bean, succulent” and “Pea, succulent” are ambiguous in terms of how they should be translated into subgroup tolerance listings. EPA proposes to revise “Bean, succulent” and “Pea, succulent” to incorporate both edible podded and succulent shelled forms. EPA also proposes to add new definitions for “Bean, succulent shelled,” “Bean, edible podded,” “Pea, succulent shelled,” and “Pea, edible podded” so these terms are defined individually.
EPA is proposing to remove the entries for “Bean, dry” and “Pea, dry,” because the commodity definitions are not as useful as they once were since the beans and peas are more clearly listed in the commodity lists for the amended crop groups. These commodity definitions are therefore proposed to be replaced with new definitions for “Bean, dry, seed” and “Pea, dry, seed,” which are more accurate and reflect the proposed changes to the crop groupings previously discussed. The “Bean, dry, seed” commodities are in crop subgroup 6-XXE, Dried shelled bean subgroup, except soybean, subgroup and the “Pea, dry, seed” commodities are in crop subgroup 6-XXF, Dried shelled pea subgroup.
EPA is proposing to amend “Crop Group 7: Foliage of Legume Vegetables Group” by changing the name to “Crop Group 7-XX: Forage and Hay of Legume Vegetables Group.” The name change of this crop group is proposed to reflect current tolerance nomenclature and uses of the crop group commodities. The commodities in this group are livestock feed commodities, and only forage and hay residue field trials are required. Foliage is a more general term, while forage and hay are specific for the raw agricultural commodities included in this crop group.
In addition to the title change, EPA is proposing to update the commodity listings in the group. The following paragraphs describes this crop grouping in more detail.
The description of the current commodities is as follows: “Plant parts of any legume vegetable included in the legume vegetables that will be used as animal feed.” EPA proposes to change this description to the following: “Plant parts of any legume vegetable listed in crop group 6-XX that will be used as animal feed.”
EPA notes that tolerances can be requested independently on CG 6 and CG 7. Even though CG 7 includes “plant parts of any legume vegetable . . . that will be used as animal feed,” in practice the only commodities that meet that description are cowpeas and field peas that are specifically used for forage crops. This is why cowpea is being added to the representative commodities. Different varieties of cowpeas and field peas are grown to produce edible podded, succulent shelled or dry seed beans/peas and for forage and hay of legume vegetables. Additionally, they are grown in different parts of the country.
The current crop group has the following description of the
The only bean commodity currently used as a livestock feedstuff is cowpea (
EPA is proposing to revise the name of “Crop Subgroup 7A. Foliage of legume vegetables (except soybeans) subgroup” to be “Crop Subgroup 7-XXA. Forage and hay of legume vegetables (except soybeans) subgroup,” EPA is also proposing several revisions to the crop subgroup to parallel the changes being made to the commodities and representative commodities of crop Group 7-XX, as follows:
The following commodities are proposed for Crop Subgroup 7-XXA: Plant parts of any legume vegetable listed in crop group 6-XX (except soybeans) that will be used as animal feed.
EPA is proposing the following representative commodities for proposed Crop Subgroup 7-XXA: Any cultivar of bean (
EPA is proposing to change the name of Crop Group 15: Cereal Grains Group to Crop Group 15-XX: Cereal Grain Group. Additionally, EPA is proposing changes to the commodities and representative commodities and EPA is proposing to add subgroups.
EPA is proposing to add additional commodities to Crop Group 15-XX. These additions are based on similarities of growth habits and edible plant parts (grain, seeds, or achenes) that are exposed similarly to pesticides, wide geographical distribution, comparison of established tolerances, and for international harmonization purposes. Adding these commodities into a group will benefit growers by enabling tools for crop protection. Many minor cereal grain orphan crops have become more popular in the United States and other countries and regions today than when Crop Group 15 was first established. Some of these “minor” crops have great potential to be grown on a larger scale in some areas in the future due to their unique nutritional and medicinal values. Being excluded from the crop groups means that tolerances requested for these commodities would have to be established based on separate residue studies. Also, this proposal would facilitate the establishment of pesticide tolerances on numerous pesticides that are needed to control a wide diversity of cereal grain pests, and will support IPM programs to incorporate reduced risk pesticides and biopesticides, and to reduce the development of pesticide resistance. Because the demand for cereal grain crops keeps increasing in the United States, as well as older varieties such as spelt wheat and emmer wheat (popularly called farro) becoming mainstream, these crops may provide local market growers new revenue opportunities with high returns per acre. Also, this proposal is more closely aligned with the Codex cereal grain crop group and subgroups.
EPA is proposing to include the following 60 cereal grains in Crop Group 15-XX: Amaranth, grain,
Moench; huauzontle, grain,
Twenty-one of these commodities simply reflect specific terms for commodities already included in the current crop group (
EPA is proposing to create 6 subgroups: Crop Subgroup 15-XXA, Wheat subgroup; Crop Subgroup 15-XXB, Barley subgroup; Crop Subgroup 15-XXC, Field corn subgroup; Crop Subgroup 15-XXD, Sweet corn subgroup; Crop Subgroup 15-XXE, Grain sorghum and millet subgroup; and Crop Subgroup 15-XXF, Rice subgroup. The following are a description of the proposed subgroups:
EPA is proposing the following commodities for inclusion in subgroup 15-XXA: Amaranth, grain; Amaranth, purple; Cañihua; Chia; Cram cram; Huauzontle, grain; Inca wheat; Princess feather; Psyllium; Psyllium, blond; Quinoa; Rye; Triticale; Wheat; Wheat, club; Wheat, common; Wheat, durum; Wheat, einkorn; Wheat, emmer; Wheat, macha; Wheat, oriental; Wheat, Persian; Wheat, Polish; Wheat, poulard; Wheat, shot; Wheat, spelt; Wheat, timopheevi; Wheat, vavilovi; Wheat, wild einkorn; Wheat, wild emmer; and Wheatgrass, intermediate; as well as cultivars, varieties, and hybrids of these commodities.
EPA is proposing the following commodities for inclusion in subgroup 15-XXB: Barley; Buckwheat; Buckwheat, tartary; Canarygrass, annual; Oat; Oat, Abyssinian; Oat, common; Oat, naked; and Oat, sand; as well as cultivars, varieties, and hybrids of these commodities.
EPA is proposing the following commodities for inclusion in subgroup 15-XXC: Corn, field; Popcorn; and Teosinte; as well as cultivars, varieties, and hybrids of these commodities.
EPA is proposing the following commodities for inclusion in subgroup 15-XXD: Baby corn; and Corn, sweet; as well as cultivars, varieties, and hybrids of these commodities.
EPA is proposing the following commodities for inclusion in subgroup 15-XXE: Fonio, black; Fonio, white; Grain sorghum; Job's tears; Millet, barnyard; Millet, finger; Millet, foxtail; Millet, little; Millet, pearl; Millet, Proso; and Teff; as well as cultivars, varieties, and hybrids of these commodities.
EPA is proposing the following commodities for inclusion in subgroup 15-XXF: Rice; Rice, African; Wild rice; and Wild rice, eastern; as well as cultivars, varieties, and hybrids of these commodities.
EPA is proposing to include the current representative commodities for Crop Group 15, add barley as a representative crop to accommodate the new Barley Subgroup (15-XXB), and add proso millet as an alternative representative commodity for better harmonization of the Grain Sorghum and Millet Subgroup (15-XXD). In practice, the residue field trial requirement could be fulfilled by providing the required number of trials on just grain sorghum, just proso millet, or a combination of the two commodities. EPA notes that barley is a representative crop in Canada and barley is also the representative commodity for the recently adopted Codex subgroup 020B, Barley, similar grains and pseudocereals with husks. EPA does not intend the addition of barley as a representative commodity to increase the number of required field trials for the group. EPA plans to split the current requirement for wheat trials into wheat and barley. Wheat and barley are mostly grown in similar field trial regions. Studies unique only to wheat or barley would include only the respective crop in the appropriate regions. The total number of trials for wheat and barley would be the same as when wheat was the only representative crop. (Refs. 3-5, 7, and 13-15). Specifically, this would replace the current requirement of 15 field trials for wheat with 6 of barley and 9 of wheat, resulting in no net increase in field trials (Ref. 5). This change applies only to the total number of field trials required for Crop Group 15; this change has no impact on the number of field trials required to establish a tolerance for wheat alone, the wheat subgroup, barley alone, or the barley subgroup. With respect to the newly proposed option of proso millet as a representative commodity in lieu of or in combination with grain sorghum, EPA notes that OPPTS 860.1500—Crop Field Trials (Ref. 14) currently provides for 12 (9 if part of the group) field trials for grain sorghum and 5 for proso millet. EPA plans to implement the revised Crop Group 15-XX with 9 field trials of grain sorghum or 9 of proso millet, or a mixture of grain sorghum and proso millet totaling 9. This would not affect the number of field trials to establish a tolerance for proso millet alone. EPA intends to update OPPTS 860.1500—Crop Field Trials (Ref. 14) to reflect these changes when EPA wholistically updates the guideline at, or around, the conclusion of this series of rulemakings revising the pesticide tolerance crop grouping regulations.
Proso millet is a member of the current Cereal Grain Crop Group 15. EPA is now proposing it to be an alternate representative commodity for the Grain sorghum and millet crop subgroup 15-XXE and for crop group 15. Codex also adopted Subgroup 020D Grain Sorghum and Millet subgroup with grain sorghum as the representative commodity. Canada does not grow grain sorghum but does grow proso millet and there is sufficient production of millet in Canada with field trial requirements already established. The United States grows both commodities. By having grain sorghum or proso millet as the representative commodities for crop subgroup 15-XXE, trade irritants with Canada would be avoided. Therefore, for the proposed revised U.S. subgroup 15-XXE the representative commodities are expressed as grain sorghum or proso millet. OPPTS 860.1500—Crop Field Trials (Ref.14) currently specifies 5 field trials for proso millet and 12 (9 if part of a crop group) field trials for grain sorghum. Under these revisions, the subgroup could be obtained with 12 field trails (12 for proso millet or 12 for grain sorghum, or a combination of the
EPA is proposing to amend Crop Group 16: Forage, Fodder and Straw of Cereal Grains Group to update the commodity listings in the group. EPA also proposes to name the new crop group “Crop Group 16-XX: Forage, Hay, Stover, and Straw of Cereal Grain Group.” EPA is proposing this change because corn fodder is an antiquated term referring to the entire corn plant (either fresh or dried) and including the ears. Modern harvesting methods since 1950s remove the ear at harvest and leave only the whole stalk, which is referred to as stover. Thus, EPA is proposing to replace fodder with stover to update the commodity terminology. Due to the change in harvesting methods, fodder no longer has any meaning for most cereal grains, including all the representative commodities in the proposed group 15-XX.
Consistent with the changes proposed for Crop Group 15-XX, EPA is proposing to add the same additional commodities to Crop Group 16-XX. These additions are based on similarities of growth habits and edible plant parts that are exposed similarly to pesticides, wide geographical distribution, comparison of established tolerances, and for international harmonization purposes.
EPA is proposing to include the following in Forage, Hay, Stover, and Straw of Cereal Grain Crop Group 16-XX: The forage, hay, stover and straw of the commodities included in proposed Cereal Grain Crop Group 15-XX.
EPA is not proposing to create subgroups for Crop Group 16-XX and is not proposing changes to the representative commodities. The representative commodities would continue to be corn, wheat, and any other cereal grain crop.
The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the person listed under
1. U.S. EPA, “Burden Reduction from the Expansion of Crop Group Program,” September 28, 2021.
2. USDA IR-4 Petition. William P. Barney. Proposed revisions to Legume Vegetables (Succulent or Dried), Crop Group 6 and Foliage of Legume Vegetables, Crop Group 7, Technical Amendment to 40 CFR 180.41(c)(6) and (c) IR-4 PR #11237 (Legume Vegetable) and PR# 11238 (Foliage of Legume Vegetables). Volumes 1-4. July 9, 2013.
3. USDA IR-4 Petition. William P. Barney. Proposed revisions to Cereal Grains, Crop Group 15 and Forage, Fodder and Straw of Cereal Grains Crop Group 16, Technical Amendment to 40 CFR 180.41(c)(9); IR-4 PR #11394. Volumes 1-3. February 18, 2014.
4. Schneider, Bernard A. Recommendations for Amending Crop Group 15 Cereal Grains and Crop Group 16 Forage, Fodder and Straw of Cereal Grains to Approve Its Members, Representative Commodities, Crop Subgroups, and Commodity Definitions Including Grasses for Sugar and Syrup Production September 6, 2018, Updated April 29, 2020.
5. Schneider, Bernard A. EPA Memorandum: Crop Grouping—Part XX: Analysis of the USDA IR-4 Petition to Amend the Crop Group Regulation 40 CFR 180.41(c)(22) and Commodity Definitions [40 CFR 180.1(g)] Related to the Crop Group 15: Cereal Grains and the Forage, Fodder and Straw of Cereal Grains Group 16 [40 CFR 180.41(c)(23)], and Commodity Definition “Grasses for Sugar and Syrup Production. June 8, 2018, updated April 29, 2020, Updated October 19, 2021.
6. USEPA. Chemistry Science Advisory Council (ChemSAC) Minutes. Response to Questions by the Crop Group Implementation Focus Group (CGIFG) on Amending the Cereal Grain Crop Group 15 and the Forage, Fodder, and Straw of the Cereal Grain Crop Group 16. April 8, 2020.
7. Schneider, Bernard A. EPA Memorandum: Response to Questions by the Crop Group Implementation Focus Group (CGIFG) on Amending the Cereal Grain Crop Group 15 and the Forage, Fodder and Straw of Cereal Grain Crop Group 16. November 18, 2019, Updated December 11, 2019 and April 8, 2020.
8. USEPA. Chemistry Science Advisory Council (ChemSAC) Minutes. Recommendations to the HED Chemistry Science Advisory Council Regarding Updates to Crop Groups 6 (Legume Vegetables) and 7 (Foliage of Legume Vegetables). October 25, 2017.
9. Schneider, Bernard A. EPA Memorandum. Crop Grouping Part XVII: Analysis of the USDA IR-4 Petition to Amend the Crop Group Regulation 40 CFR 180.41(c)(7) and Commodity Definitions (40 CFR 180.1(g)) Related to the Crop Group 6 Legume Vegetables. September 27, 2016, updated February 7, 2017.
10. Schneider, Bernard A. Recommendations for Amending Crop Group 6 Legume Vegetable to Approve Its Members, Representative Commodities, Crop Subgroups, and Associated Commodity Definitions. February 8, 2017.
11. Schneider, Bernard A. Recommendations for Amending Crop Group 7 Foliage of Legume Vegetable to Approve Its Members, Representative Commodities, Crop Subgroups, and Associated Commodity definitions. September 29, 2016.
12. U.S. EPA, “Economic Analysis of the Proposed Expansion of the Crop Group Program,” February 12, 2007.
13. U.S.D.A. 2017 Census of Agriculture, available at
14. U.S. EPA. Series 860—Residue Chemistry Test Guideline, OPPTS 860.1500—Crop Field Trials. EPA 712-C-96-183. August 1996.
15. U.S. EPA. Series 860—Residue Chemistry Test Guideline, OPPTS 860.1000—Background (August 1998), see footnotes 13 and 51.
16. IR-4/USDA International Crop Grouping Symposium Proceedings, 2002, available at
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735; October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).
This action does not impose any new information collection requirements that would require additional review or approval by OMB under the provisions of the PRA, 44 U.S.C. 3501
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601
This proposed action provides regulatory relief and regulatory flexibility. The new crop groups ease the process for pesticide manufacturers to obtain pesticide tolerances on greater numbers of crops. Pesticides will be more widely available to growers for use on crops, particularly specialty crops. Rather than having any adverse impact on small businesses, this proposal would relieve regulatory burden for all directly regulated small entities. We have therefore concluded that this proposed action would, if finalized, relieve regulatory burden for all directly regulated small entities.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector.
This proposed action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 4, 1999). It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government. Thus, Executive Order 13132 does not apply to this action.
This proposed action does not have tribal implications as specified in Executive Order 13175 (62 FR 19985, April 23, 1997) because it will not have any effect on tribal governments, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Thus, Executive Order 13175 does not apply to this proposed action.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of Executive Order 13045. This proposed action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This proposed action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001, because it is not a significant regulatory action under Executive Order 12866.
This proposed action does not involve technical standards as specified in NTTAA section 12(d), 15 U.S.C. 272 note.
This proposed action does not address human health or environmental risks or otherwise have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
Administrative practice and procedure, Commodities, Environmental protection, Pesticides and pests.
Therefore, for the reasons stated in the preamble, it is proposed that 40 CFR chapter I be amended as follows:
21 U.S.C. 321(q), 346a and 371.
The additions and revisions read as follows:
(g) * * *
The additions read as follows.
(c) * * *
(10)
(i)
(ii)
(iii)
(12)
(i)
(ii)
(iii)
(27)
(i)
(ii)
(iii)
(29)
(i)
(ii)
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding; whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by February 9, 2022 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.
The data will be used to estimate the type and prevalence of various feeding practices among children who received WIC program benefits, after their program eligibility ends.
This study will also examine the circumstances and influences that shape caregivers' feeding decisions for their children, and will describe the impact of childhood WIC participation on subsequent dietary and health outcomes. In addition, the study will examine if those who left the longitudinal study are fundamentally different from those who remain in the study.
Farm Service Agency, USDA.
Notice; request for comments.
In accordance with the Paperwork Reduction Act of 1995, the Farm Service Agency (FSA) is requesting comments from all interested individuals and organizations on an extension of a currently approved information collection request associated with the Request for Special Priorities Assistance. The information collection established by the Agriculture Priorities and Allocations System (APAS) regulation is necessary for the program applicant (person) to request prioritizing of a contract above all other contracts. The purpose of the priority rating is to obtain item(s) in support of national defense programs that they are not able to obtain in time through normal market channels.
We will consider comments that we receive by March 11, 2022.
We invite you to submit comments on the notice. You may submit comments by any of the following methods:
•
•
You may also send comments to the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503. Copies of the information collection may be requested by contacting Scott Linsky.
For specific questions related to collection activities, contact Scott Linsky, telephone: (202) 720-7795; or by email:
For the following estimated total annual burden on respondents, the formula used to calculate the total burden hour is the estimated average time per response multiplied by the estimated total annual responses.
We are requesting comments on all aspects of this information collection to help us to:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the FSA, including whether the information will have practical utility;
(2) Evaluate the accuracy of the FSA's estimate of burden 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.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission for Office of Management and Budget approval.
Food and Nutrition Service, USDA.
Notice.
This notice informs the public of the annual adjustments to the reimbursement rates for meals served in the Summer Food Service Program for Children. These adjustments address changes in the Consumer Price Index, as required under the Richard B. Russell National School Lunch Act. The 2022 reimbursement rates are presented as a combined set of rates to highlight simplified cost accounting procedures. The 2022 rates are also presented individually, as separate operating and administrative rates of reimbursement, to show the effect of the Consumer Price Index adjustment on each rate.
The rates take effect January 1, 2022.
J. Kevin Maskornick, Program Monitoring and Operational Support Division, Child Nutrition Programs, Food and Nutrition Service, United States Department of Agriculture, 1320 Braddock Place, Suite 401, Alexandria, Virginia 22314, 703-305-2537.
The Summer Food Service Program (SFSP) is listed in the Catalog of Federal Domestic Assistance under No. 10.559 and is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR, 415 and final rule-related document published at 48 FR 29114, June 24, 1983.)
In accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520, no new recordkeeping or reporting requirements have been included that are subject to approval from the Office of Management and Budget.
This notice is not a rule as defined by the Regulatory Flexibility Act, 5 U.S.C. 601-612, and thus is exempt from the provisions of that Act. Additionally, this notice has been determined to be exempt from formal review by the Office of Management and Budget under Executive Order 12866.
The terms used in this notice have the meaning ascribed to them under 7 CFR part 225 of the SFSP regulations.
This notice informs the public of the annual adjustments to the reimbursement rates for meals served in SFSP. In accordance with sections 12(f) and 13, 42 U.S.C. 1760(f) and 1761, of the Richard B. Russell National School Lunch Act (NSLA) and SFSP regulations under 7 CFR part 225, the United States Department of Agriculture announces the adjustments in SFSP payments for meals served to participating children during calendar year 2022.
The 2022 reimbursement rates are presented as a combined set of rates to highlight simplified cost accounting procedures. Reimbursement is based solely on a “meals times rates” calculation, without comparison to actual or budgeted costs.
Sponsors receive reimbursement that is determined by the number of reimbursable meals served, multiplied by the combined rates for food service operations and administration. However, the combined rate is based on separate operating and administrative rates of reimbursement, each of which is adjusted differently for inflation.
The combined rates are constructed from individually authorized operating and administrative reimbursements. Simplified procedures provide flexibility, enabling sponsors to manage their reimbursements to pay for any allowable cost, regardless of the cost category. Sponsors remain responsible, however, for ensuring proper administration of the Program, while providing the best possible nutrition benefit to children.
The operating and administrative rates are calculated separately. However, the calculations of adjustments for both cost categories are based on the same set of changes in the
Presentation of the 2022 maximum per meal rates for meals served to children in SFSP combines the results from the calculations of operational and administrative payments, which are further explained in this notice. The total amount of payments to State agencies for disbursement to SFSP sponsors will be based upon these adjusted combined rates and the number of meals of each type served. These adjusted rates will be in effect from January 1, 2022 through December 31, 2022.
The portion of the SFSP rates for operating costs is based on payment amounts set in section 13(b)(1) of the NSLA, 42 U.S.C. 1761(b)(1). They are rounded down to the nearest whole cent, as required by section 11(a)(3)(B)(iii) of the NSLA, 42 U.S.C. 1759a(a)(3)(B)(iii).
The administrative cost component of the reimbursement is authorized under section 13(b)(3) of the NSLA, 42 U.S.C. 1761(b)(3). Rates are higher for sponsors of sites located in rural areas and for “self-prep” sponsors that prepare their own meals at the SFSP site or at a central facility instead of purchasing them from vendors. The administrative portion of SFSP rates are adjusted, either up or down, to the nearest quarter-cent.
Forest Service, Agriculture (USDA).
Notice; withdrawal.
The Dixie National Forest is withdrawing its notice of intent (NOI) to prepare an environmental impact statement (EIS) for the Powell Travel Management Project on the Powell Ranger District. The original NOI was published in the
Questions concerning this notice should be directed to Powell District Ranger Christopher Wehrli at
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Georgia Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a meeting via WebEx on Thursday, February 10, 2022, at 12 p.m. Eastern time for the purpose of discussing the Committee's project on Civil Asset Forfeiture and its Impact on Communities of Color in Georgia.
The meeting will take place on Thursday, February 10, 2022, from 12 p.m.-1 p.m. Eastern time.
Melissa Wojnaroski, DFO, at
Members of the public can listen to these discussions. Committee meetings are available to the public through the above call-in number. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Individuals who are deaf, deafblind and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments;
Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that countervailable subsidies are being provided to producers and/or exporters of pentafluoroethane (R-125) from the People's Republic of China (China). The period of investigation is January 1, 2020, through December 31, 2020.
Applicable January 10, 2022.
Adam Simons, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6172.
On June 25, 2021, Commerce published the
A summary of the events that occurred since Commerce published the
The product covered by this investigation is R-125 from China. For a complete description of the scope of this investigation,
In accordance with the preamble to Commerce's regulations,
The subsidy programs under investigation and the issues raised in the case and rebuttal briefs by parties in this investigation are discussed in the Issues and Decision Memorandum. A list of the issues that parties raised is attached to this notice as Appendix II.
Commerce conducted this investigation in accordance with section 701 of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, Commerce determines that there is a subsidy,
In making this final determination, Commerce relied, in part on facts otherwise available, and because it found that one or more respondents did not act to the best of their ability to respond to Commerce's requests for information, it drew an adverse inference, where appropriate, in selecting from among the facts available.
Commerce was unable to conduct on-site verification of the information relied upon in making its final determination in this investigation. However, we took additional steps in lieu of an on-site verification to verify the information relied upon in making this final determination, in accordance with section 782(i) of the Act.
Based on our review and the analysis of the comments received from parties and our verification findings, we made changes to our subsidy rate calculations for Juxin and Sanmei. As a result of these changes, Commerce also revised the all-others rate. Commerce also revised the AFA rate applied to the companies which did not respond to the Q&V questionnaire to include the subsidy programs included in the Post-Preliminary Analysis Memo.
In accordance with section 705(c)(1)(B)(i)(I) of the Act, we calculated individual estimated subsidy rates for Juxin and Sanmei. Section 705(c)(5)(A)(i) of the Act states that, for companies not individually investigated, Commerce will determine an all-others rate equal to the weighted-average countervailable subsidy rates established for exporters and/or producers individually investigated, excluding any zero and
Commerce determines that the following total estimated net countervailable subsidy rates exist:
Commerce intends to disclose its calculations and analysis performed in this final determination to interested parties within five days of the date of public announcement to parties in this proceeding or, if there is no public announcement, within five days of publication of this notice in accordance with 19 CFR 351.224(b).
As a result of our
If the U.S. International Trade Commission (ITC) issues a final affirmative injury determination, we will issue a countervailing duty (CVD) order, reinstate the suspension of liquidation under section 706(a) of the Act, and require cash deposit of estimated countervailing duties for such entries of subject merchandise in the amounts indicated above. If the ITC determines that material injury, or threat of material injury, does not exist, this proceeding will be terminated, and all estimated duties deposited, or securities posted as a result of the suspension of liquidation will be refunded or canceled.
In accordance with section 705(d) of the Act, we will notify the ITC of our determination. Because the final determination in this proceeding is affirmative, in accordance with section 705(b) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of R-125 from China no later than 45 days after our final determination.
If the ITC determines that material injury or threat of material injury does not exist, the proceeding will be terminated, and all cash deposits will be refunded. If the ITC determines that material injury or threat of material injury does exist, Commerce will issue a CVD order directing CBP to assess, upon further instruction by Commerce, countervailing 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, as discussed above in the “Continuation of Suspension of Liquidation” section.
In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties subject to 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.
This notice is issued and published in accordance with sections 705(d) and 777(i) of the Act.
The merchandise covered by this investigation is pentafluoroethane (R-125), or its chemical equivalent, regardless of form, type or purity level. R-125 has the Chemical Abstracts Service (CAS) registry number of 354-33-6 and the chemical formula C
R-125 contained in blends that do not conform to ANSI/ASHRAE Standard 34 is included in the scope of this investigation when R-125 constitutes the largest relative component by volume, on an actual percentage basis, of the blend.
Subject merchandise also includes purified and unpurified R-125 that is processed in a third country or otherwise outside the customs territory of the United States, including, but not limited to, purifying, blending, or any other processing that would not otherwise remove the merchandise from the scope of this investigation if performed in the country of manufacture of the in-scope R-125. The scope also includes R-125 that is commingled with R-125 from sources not subject to this investigation. Only the subject component of such commingled products is covered by the scope of this investigation.
Excluded from the scope is merchandise covered by the scope of the antidumping order on
R-125 is classified under Harmonized Tariff Schedule of the United States (HTSUS) subheading 2903.39.2035 and 2903.39.2038. Merchandise subject to the scope may also be entered under HTSUS subheadings 2903.39.2045, 3824.78.0020, and 3824.78.0050. The HTSUS subheadings and CAS registry number are provided for convenience and customs purposes. The written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On January 3, 2022, the U.S. Court of International Trade (CIT) issued its final judgment in
Applicable January 13, 2022.
David Goldberger, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4136.
On June 14, 2019, Commerce published its final results in the 2016-2017 AD administrative review of WLP from Korea.
Husteel Co., Ltd., Hyundai Steel Co. (Hyundai Steel), NEXTEEL, and SeAH appealed Commerce's
In its first remand redetermination, issued in January 2021, Commerce recalculated SeAH's weighted-average dumping margin using the company's Canadian sales as the basis for NV and without making the PMS adjustment to the COP. As a result, SeAH's weighted-average dumping margin was 7.24 percent.
On June 7, 2021, the CIT remanded the
In its second remand redetermination, issued in September 2021, Commerce recalculated NEXTEEL's weighted average-dumping margin based on the actual costs of prime and non-prime merchandise reported by NEXTEEL. The revised weighted-average dumping margin for NEXTEEL was 11.41 percent and the resulting review-specific average rate for the non-selected respondents was 9.09 percent.
In its decision in
Because there is now a final court judgment, Commerce is amending its
The exporters or producers not selected for individual review are listed in the appendix.
Because NEXTEEL, SeAH, and the non-selected companies have a superseding cash deposit rate,
At this time, Commerce remains enjoined by CIT order from liquidating entries that: Were produced and/or exported by NEXTEEL, SeAH, and the non-selected companies, and were entered, or withdrawn from warehouse, for consumption during the period December 1, 2016, through November 30, 2017. These entries will remain enjoined pursuant to the terms of the injunction during the pendency of any appeals process.
In the event the CIT's ruling is not appealed, or, if appealed, upheld by a final and conclusive court decision, Commerce intends to instruct CBP to assess antidumping duties on unliquidated entries of subject merchandise produced and/or exported by NEXTEEL, SeAH, and the non-selected companies in accordance with 19 CFR 351.212(b). We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review when the importer-specific
This notice is issued and published in accordance with sections 516A(c) and (e) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is amending its notice of final results of the 2019 administrative review of the countervailing duty (CVD) order on certain softwood lumber products (softwood lumber) from Canada.
Applicable January 10, 2022.
Jonathan Hall-Eastman (Canfor), John Hoffner (JDIL), Kristen Johnson/Samuel Brummitt (Resolute), and Laura Griffith (West Fraser), 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) 482-1468, (202) 482-3315, (202) 482-4793/(202) 482-7851, and (202) 482-6430, respectively.
On December 2, 2021, Commerce published its final results in the 2019 administrative review of the CVD order on certain softwood lumber from Canada.
In the Petitioner Ministerial Error Allegation Submission, the petitioner alleged with respect to J.D. Irving, Limited (JDIL) that Commerce committed ministerial errors regarding the subsidy calculations for New Brunswick License Management Fees, Capital Cost Allowance for Class 1 Assets, New Brunswick Gasoline & Fuel Tax Exemptions and Refund, and Large Industrial Renewable Energy Purchase (LIREPP) programs.
The product covered by the
Section 351.224(e) of Commerce's regulations provides that Commerce will analyze any comments received and, if appropriate, correct any ministerial error by amending the final results of the review. Section 751(h) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.224(f) define a “ministerial error” as an error “in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.”
We analyzed the ministerial error comments and determined, in accordance with section 751(h) of the Act and 19 CFR 351.224(e) and (f), that
(1) We incorrectly calculated JDIL's benefit under the New Brunswick License Management Fees. Therefore, we have corrected JDIL's License Management Fees benefit calculation in these amended final results, and we will incorporate JDIL's corrected total subsidy rate in the amended cash deposit instructions and liquidation instructions.
(2) We incorrectly calculated JDIL's benefit under the Capital Cost Allowance for Class 1 Assets program. Although the resulting change in JDIL's benefit amount for this program will not change JDIL's subsidy rate when rounded to the nearest one-hundredth place, as we are already making other modifications to our calculations, we have determined to correct JDIL's license management fees benefit calculation in these amended final results.
(3) We incorrectly calculated JDIL's benefit under the New Brunswick Gasoline & Fuel Tax Exemptions and Refund program. Therefore, we have corrected JDIL's license management fees benefit calculation in these amended final results, and we will incorporate JDIL's corrected total subsidy rate in the amended cash deposit instructions and liquidation instructions.
(4) Finally, we incorrectly calculated West Fraser's benefit under the Coloured Fuel/British Columbia Coloured Fuel Certification program. Therefore, we have corrected West Fraser's benefit calculation in these amended final results, and we will incorporate West Fraser's corrected total subsidy rate in the amended cash deposit instructions and liquidation instructions.
With regard to the petitioner's allegation that we incorrectly calculated the net subsidy rate for JDIL's LIREPP program, we find no ministerial error because we made a methodological decision in calculating the benefit for certain LIREPP credits. Regarding the petitioner's allegation that we incorrectly calculated the payments made to West Fraser for cruising and block layout activities, we agree with the petitioner that Commerce conducted an incorrect calculation of the potential benefit under this program, and further acknowledge that this type of error is one Commerce would typically correct as a ministerial error. However, such a correction would likely result in calculations upon which interested parties would be unable to brief or provide commentary, given the timing and nature of the change in this review. Accordingly, we are deferring a determination as to whether this program is countervailable until the next administrative review and, thus, not amending our calculation for this program in the
We find that the petitioner's allegation that Commerce used an incorrect sales denominator to calculate West Fraser's benefit under certain programs is untimely, because it was discoverable in the
In the
As a result of correcting the alleged ministerial errors noted above, we determine that the following countervailable subsidy rates exist for 2019
Pursuant to section 751(a)(2)(C) of the Act and 19 CFR 351.212(b)(2), Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries of subject merchandise in accordance with the amended final results of this review, for the above-listed companies at the applicable
In accordance with section 751(a)(2)(C) of the Act, Commerce also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts shown for the companies subject to this review. For all non-reviewed companies, we will instruct CBP to continue to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposits, effective upon publication of these amended final results, shall remain in effect until further notice.
This notice also serves as a final reminder to parties subject to APO of their responsibility concerning the return or destruction 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 the terms of an APO is a sanctionable violation.
Commerce is issuing and publishing these amended final results of administrative review 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.
The Department of Commerce (Commerce) determines that pentafluoroethane (R-125) from the People's Republic of China (China) is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation is July 1, 2020, through December 31, 2020. The final dumping margins of sales at LTFV is listed below in the “Final Determination” section of this notice.
Applicable January 10, 2022.
Alex Wood or Benjamin A. Luberda, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1959 or (202) 482-2185, respectively.
On August 17, 2021, Commerce published the
A summary of the events that occurred since Commerce published the
The product covered by this investigation is R-125 from China. For a complete description of the scope of this investigation,
In accordance with the preamble to Commerce's regulations,
All issues raised in the case and rebuttal briefs by parties in this investigation are addressed in the Issues and Decision Memorandum. A list of the issues raised is attached to this notice as Appendix II.
Commerce was unable to conduct on-site verification of the information relied upon in making its final determination in this investigation. However, we took additional steps in lieu of an on-site verification to verify the information relied upon in making this final determination, in accordance with section 782(i) of the Tariff Act of 1930, as amended (the Act).
Based on our review and analysis of the comments received from parties, we made certain changes to the AD margin calculation for Sanmei.
We continue to find that critical circumstances exist for imports of R-125 from China for the non-selected companies receiving a separate rate and the China-wide entity pursuant to sections 735(a)(3)(A) and (B) of the Act and 19 CFR 351.206.
For the reasons explained in the
For the final determination, we continue to find that Sanmei and certain non-individually examined respondents are eligible for separate rates. Generally, Commerce looks to section 735(c)(5)(A) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for separate rate respondents that we did not individually examine. Because the only individually calculated dumping margin for Sanmei is not zero,
In the
The final estimated weighted-average dumping margins are as follows:
Commerce
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 appropriate entries of R-125 from Sanmei, the separate rates companies, and the China-wide entity.
To determine the cash deposit rate, Commerce normally adjusts the estimated weighted-average dumping margin by the amount of domestic subsidy pass-through and export subsidies determined in a companion CVD proceeding when CVD provisional measures are in effect. Accordingly, where Commerce makes an affirmative determination for domestic subsidy pass-through or export subsidies, Commerce offsets the calculated estimated weighted-average dumping margin by the appropriate rate(s). In this case, we made a negative determination for domestic subsidy pass-through for all respondents,
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 normal value exceeds U.S. price as follows: (1) The cash deposit rate for the exporter/producer combination listed in the table above or in Appendix III will be the rate identified for that combination in that table or Appendix III; (2) for all combinations of exporters/producers of merchandise under consideration that have not received their own separate rate, the cash deposit rate will be the cash deposit rate established for the China-wide entity; and (3) for all non-Chinese exporters of the merchandise under consideration that have not received their own separate rate, the cash deposit rate will be the cash deposit rate applicable to the Chinese exporter/producer combination that supplied that non-Chinese 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 determination. Because the final determination in this proceeding is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of R-125 from China no later than 45 days after our final determination. If the ITC determines that material injury or threat of material injury does not exist, the proceeding will be terminated, and all cash deposits will be refunded. If the ITC determines that such injury does exist, Commerce will issue an AD 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, as discussed above in the “Continuation of Suspension of Liquidation” section.
In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return 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 is pentafluoroethane (R-125), or its chemical equivalent, regardless of form, type or purity level. R-125 has the Chemical Abstracts Service (CAS) registry number of 354-33-6 and the chemical formula C
R-125 contained in blends that do not conform to ANSI/ASHRAE Standard 34 is included in the scope of this investigation when R-125 constitutes the largest relative component by volume, on an actual percentage basis, of the blend.
Subject merchandise also includes purified and unpurified R-125 that is processed in a third country or otherwise outside the customs territory of the United States, including, but not limited to, purifying, blending, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope R-125. The scope also includes R-125 that is commingled with R-125 from sources not subject to this investigation. Only the subject component of such commingled products is covered by the scope of this investigation.
Excluded from the scope is merchandise covered by the scope of the antidumping order on
R-125 is classified under Harmonized Tariff Schedule of the United States (HTSUS) subheading 2903.39.2035 and 2903.39.2038. Merchandise subject to the scope may also be entered under HTSUS subheadings 2903.39.2045, 3824.78.0020, and 3824.78.0050. The HTSUS subheadings and CAS registry number are provided for convenience and customs purposes. 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 Shanghai Tainai Bearing Co., Ltd. (Tainai) sold tapered roller bearings and parts thereof, finished and unfinished, (TRBs) from the People's Republic of China (China) at less than normal value (NV) during the period of review (POR), June 1, 2019, through May 31, 2020. Additionally, Commerce determines that it is appropriate to rescind this administrative review of the antidumping duty (AD) order on TRBs from China with respect to BRTEC Wheel Hub Bearing Co., Ltd. (BRTEC) and Zhejiang Jingli Bearing Technology Co. Ltd. (Jingli) because they had no
Applicable January 10, 2022.
Alex Wood AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: at (202) 482-1959.
Commerce published the
Merchandise covered by the order are tapered roller bearings and parts thereof, finished and unfinished, from China; flange, take up cartridge, and hanger units incorporating tapered roller bearings; and tapered roller housings (except pillow blocks) incorporating tapered rollers, with or without spindles, whether or not for automotive use. These products are currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) item numbers 8482.20.00, 8482.91.00.50, 8482.99.15, 8482.99.45, 8483.20.40, 8483.20.80, 8483.30.80, 8483.90.20, 8483.90.30, 8483.90.80, 8708.70.6060, 8708.99.2300, 8708.99.4850, 8708.99.6890, 8708.99.8115, and 8708.99.8180. Although the HTSUS item numbers are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
All issues raised in interested parties' briefs are addressed in the Issues and Decision Memorandum. A list of the issues raised by interested parties and to which we responded in the Issues and Decision Memorandum is provided in the appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
We received no comments regarding our preliminary findings for BRTEC or Jingli. Thus, consistent with the
Based on our review of the record and comments received from interested
In the
For the companies subject to this review that established their eligibility for a separate rate, Commerce determines that the following weighted-average dumping margins exist for the period June 1, 2019, through May 31, 2020:
Commerce will disclose calculations performed for these final results to interested parties under Administrative Protective Order within five days of the date of publication of this notice, in accordance with 19 CFR 351.224(b).
In the
Under Commerce's current policy regarding the conditional review of the China-wide entity, the China-wide entity will not be under review unless a party specifically requests, or Commerce self-initiates, a review of the entity.
Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
For Tainai, Commerce will calculate importer-specific assessment rates for antidumping duties, in accordance with 19 CFR 351.212(b)(1). Where the respondent reported reliable entered values, Commerce intends to calculate importer-specific
For Hebei Xintai and XTL, we will direct CBP to assess antidumping duties at a rate equal to the weighted-average dumping margin determined in the final results of this review.
Commerce determined that C&U Group did not qualify for a separate rate. Therefore, we will instruct CBP to assess antidumping duties on C&U Group's entries of subject merchandise at 92.84 percent, the established weighted-average dumping margin for the China-wide entity.
For BRTEC and Jingli, because Commerce is rescinding this administrative review for these two companies, we will instruct CBP to assess antidumping duties on their entries at the cash deposit rate at the time of entry.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be equal to the weighted-average dumping margin established in the final results of this review; (2) for previously investigated or reviewed China and non-China exporters not listed above that currently have a separate rate, the cash deposit rate will continue to be the exporter-specific rate published for the most recently completed segment of this proceeding where the exporter received that separate rate; (3) for all China exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the rate for the China-wide entity, 92.84 percent; and (4) for all non-China exporters of subject merchandise which
These deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing these final results of administrative review in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5) and 19 CFR 351.213(h)(1).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The New England Fishery Management Council (Council) is scheduling a joint public meeting of its Scallop Advisory Panel via webinar to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This webinar will be held on Wednesday, January 26, 2022, at 9 a.m. Webinar registration URL information:
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Advisory Panel will receive an update on the implementation timeline for Framework Adjustment 34 and Amendment 21. They plan to review 2022 scallop workload based on priorities approved by the Council at its December meeting and discuss potential timelines for completing each task. The panel will review a draft scoping document that will be used to assess: (1) The need for a leasing program, and (2) what should the leasing program consider. Other business will be discussed, if necessary. Although non-emergency issues not contained on the agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice, Request for Comment.
On November 15, 2021, President Biden signed the Infrastructure Investment and Jobs Act of 2021 into law, also known (and referred to subsequently herein) as the Bipartisan Infrastructure Law (BIL), which includes a historic investment of $65 billion to help close the digital divide and ensure that all Americans have access to reliable, affordable, high-speed broadband. The National Telecommunications and Information Administration (NTIA), is responsible for distributing more than $48 billion in
Submit written comments on or before 5 p.m. Eastern Standard Time on February 4, 2022.
All electronic public comments on this action, identified by
In addition to inviting written submissions through this Notice, NTIA is hosting a series of public virtual listening sessions. More information about the listening sessions can be found at
Please direct questions regarding this Notice to
With the passage of the Bipartisan Infrastructure Law, Congress has taken a significant step forward in achieving the Biden-Harris Administration's goal of ensuring all Americans have access to affordable, reliable, high-speed broadband. The Bipartisan Infrastructure Law sets forth a $65 billion investment into broadband, more than $48 billion of which will be administered by NTIA's Office of internet Connectivity and Growth.
This investment will leverage NTIA's experience in promoting broadband infrastructure development and digital inclusion efforts through its BroadbandUSA initiative as well as other NTIA grant programs, including the Broadband Infrastructure Program, the Tribal Broadband Connectivity Program (TBCP), and the Connecting Minority Communities (CMC) Pilot Program. Additionally, this investment will enhance other established Federal broadband initiatives offered through the U.S. Department of the Treasury, U.S. Department of Agriculture, and the Federal Communications Commission (FCC).
This Notice is part of NTIA's strategy to engage with partners and other stakeholders to help meet the President's goal to close the digital divide. This is a historic investment, and it requires not only a whole-of-government effort, but a whole-of-country effort. This Notice seeks public comment to bolster NTIA's work and to improve the number and quality of ideas under consideration as the agency develops Notices of Funding Opportunity (NOFOs) for each of the broadband grant programs to be implemented by NTIA pursuant to the Bipartisan Infrastructure Law.
This Notice offers an opportunity for all interested parties to provide vital input and recommendations for consideration in the development of broadband programs established by the Bipartisan Infrastructure Law for implementation by NTIA.
This Notice seeks comment on several Bipartisan Infrastructure Law grant programs to be administered by NTIA: The Broadband Equity, Access and Deployment (BEAD) program, the Middle-Mile Broadband Infrastructure Program, and the Digital Equity Planning Grant Program. NTIA intends to release a future request for comment on the State Digital Equity Capacity Grant Program and Digital Equity Competitive Grant Program. In addition, given the unique nature of the nation-to-nation relationship, NTIA will conduct a Tribal consultation to gather input on questions related to the additional funding appropriated for the Tribal Broadband Connectivity Program, an NTIA program previously implemented under the Consolidated Appropriations Act, 2021.
NTIA welcomes input on any matter that commenters believe is important to NTIA's Bipartisan Infrastructure Law implementation efforts. Commenters are invited to comment on the full range of issues presented by this Notice, and are encouraged to address any or all of the following questions, or to provide additional information relevant to implementation of the Bipartisan Infrastructure Law's broadband programs. In particular, we invite commenters who have applied to or had experience with other federal or state broadband funding programs to offer suggestions for how to effectively implement these new funding programs, based on their experiences. When responding to one or more of the questions below, please note in the text of your response the number of the question to which you are responding. As part of their response, commenters are welcome to provide specific actionable proposals, rationales and relevant factual information.
NTIA seeks public comment on the following questions:
1. What are the most important steps NTIA can take to ensure that the Bipartisan Infrastructure Law's broadband programs meet their goals with respect to access, adoption, affordability, digital equity, and digital inclusion?
2. Obtaining stakeholder input is critical to the success of this effort. How best can NTIA ensure that all voices and perspectives are heard and brought to bear on questions relating to the Bipartisan Infrastructure Law's broadband programs? Are there steps NTIA can and should take beyond those described above?
3. Transparency and public accountability are critical to the success of the Bipartisan Infrastructure Law's broadband programs. What types of data should NTIA require funding recipients to collect and maintain to facilitate assessment of the Bipartisan Infrastructure Law programs' impact, evaluate targets, promote accountability, and/or coordinate with other federal
4. NTIA has an interest in ensuring that the Bipartisan Infrastructure Law is implemented in a way that promotes the efficient use of federal funds. How should NTIA and grant recipients verify that funding is used in a way that complements other federal and state broadband programs?
5. In implementing the Bipartisan Infrastructure Law's programs, NTIA will offer technical assistance to states, localities, prospective sub-grantees, and other interested parties. What kinds of technical assistance would be most valuable? How might technical assistance evolve over the duration of the grant program implementation?
6. The Bipartisan Infrastructure Law requires states and territories to competitively select subgrantees to deploy broadband, carry out digital equity programs, and accomplish other tasks. How should NTIA assess a particular state or territory's subgrant award process? What criteria, if any, should NTIA apply to evaluate such processes? What process steps, if any, should NTIA require (
7. NTIA views the participation of a variety of provider types as important to achieving the overall goals of the Bipartisan Infrastructure Law broadband programs. How can NTIA ensure that all potential subrecipients, including small and medium providers, cooperatives, non-profits, municipalities, electric utilities, and larger for-profit companies alike have meaningful and robust opportunities to partner and compete for funding under the programs?
8. States and regions across the country face a variety of barriers to achieving the goal of universal, affordable, reliable, high-speed broadband and broadband needs, which vary from place to place. These challenges range from economic and financial circumstances to unique geographic conditions, topologies, or other challenges that will impact the likelihood of success of this program. In implementing the Bipartisan Infrastructure Law's broadband programs, how can NTIA best address such circumstances?
9. Several Bipartisan Infrastructure Law broadband programs provide that, absent a waiver, a grant or subgrant recipient must contribute its own funding, or funding obtained from a non-federal source, to “match” funding provided by the BIL program. Under what circumstances, if any, should NTIA agree to waive these matching fund requirements, and what criteria should it assess (in accordance with any criteria established by the statute) when considering waiver requests?
10. The COVID-19 pandemic has disrupted global supply chains and impacted employment patterns. What is the likely impact of current workforce and supply chain constraints on the speed with which states, service providers, and others achieve the Bipartisan Infrastructure Law's network-deployment objectives? Are the areas unserved or underserved by broadband networks, which will see substantial new deployments under the Bipartisan Infrastructure Law's broadband provisions, likely to face particularly significant workforce or supply-chain constraints? What steps, if any, should NTIA take to mitigate the impact of workforce or supply-chain limitations?
11. One objective of the Bipartisan Infrastructure Law is to ensure American workers have access to high quality jobs, especially those who were impacted the most by the pandemic, including women and people of color. What federal policy tools can NTIA apply to help ensure that broadband funding is deployed in a way that maximizes the creation of good paying jobs and that women and people of color have full opportunity to secure those jobs.
12. What steps, if any, should NTIA take to ensure maximum use of American-made network components and that supply shortages are addressed in ways that create high quality jobs for all Americans? What impact, if any, will application of the “Buy American” requirements in the Bipartisan Infrastructure Law have on supply-chain and workforce challenges and on the speed with which the nation can reach the goal of 100% broadband connectivity?
The BEAD Program is a $42.45 billion program for states, territories, the District of Columbia (DC), and Puerto Rico (P.R.) (“states and territories”) to utilize for broadband deployment, mapping, equity and adoption projects. Each state, DC, and P.R. will receive an initial allocation of $100 million—and $100 million will be divided equally among the U.S. Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. NTIA will distribute the remaining funding based on a formula that considers the number of unserved and high-cost locations in the state, based on the updated broadband availability maps to be published by the FCC. The Bipartisan Infrastructure Law also provides NTIA with discretion to establish additional eligible uses for the funding.
BEAD program funding will be dispersed in three phases. The first phase allows states and territories to access up to $5 million each to support planning efforts, including building capacity in state broadband offices and to fund outreach and coordination activities with local communities and stakeholders. The second phase requires states and territories to submit an initial broadband plan to NTIA. These plans must be informed by collaboration with local and regional entities and will lay out how each respective state and territory will use the BEAD funding and other funds to bring reliable, affordable, high-speed broadband to all residents. Once NTIA approves the initial plan, states and territories will be able to access additional funds from their BEAD allocation. States and territories will be able to access the remaining funds upon review and approval of a final plan by NTIA.
13. NTIA is committed to ensuring that networks built using taxpayer funds are capable of meeting Americans' evolving digital needs, including broadband speeds and other essential network features. What guidance or requirements, if any, should NTIA consider with respect to network reliability and availability, cybersecurity, resiliency, latency, or other service quality features and metrics? What criteria should NTIA establish to assess grant recipients' plans to ensure that service providers maintain and/or exceed thresholds for reliability, quality of service, sustainability, upgradability and other required service characteristics?
14. NTIA is committed to ensuring that networks constructed using taxpayer funds are designed to provide robust and sustainable service at affordable prices over the long term.
15. In its effort to ensure that BEAD-funded networks can scale to meet Americans' evolving needs, and to ensure the public achieves the greatest benefit from the federal investment, NTIA seeks to understand reasonably foreseeable use cases for America's broadband infrastructure over the next five, ten, and twenty years. What sort of speeds, throughput, latencies, or other metrics will be required to fully connect all Americans to meaningful use over the next five, ten, and twenty years? How can the BEAD program meet our nation's broadband network connectivity needs in the future and what other benefits can Americans expect from this program and the networks it will help fund in other industries and across the economy? How can existing infrastructure be leveraged to facilitate and amplify these benefits? What are the best sources of evidence for these questions and for predicted future uses of broadband?
16. Broadband deployment projects can take months or years to complete. As a result, there are numerous areas where an entity has made commitments to deploy service—using its own funding, government funding, or a combination of the two—but in which service has not yet been deployed. How should NTIA treat prior buildout commitments that are not reflected in the updated FCC maps because the projects themselves are not yet complete? What risks should be mitigated in considering these areas as “served” in the goal to connect all Americans to reliable, affordable, high-speed broadband?
17. Ten percent of total BEAD funding is reserved for distribution based on how many unserved locations within a state or territory are also locations in which the cost to deploy service is higher than the nationwide average. The Bipartisan Infrastructure Law provides that, in calculating the cost of deployment, NTIA should consider factors such as the area's remoteness, population density, topography, poverty rate, or “any other factor identified by the Assistant Secretary, in consultation with the [FCC], that contributes to the higher cost of deploying broadband service in the area.” BIL § 60102(a)(2)(G). What additional factors, if any, should NTIA consider in determining what constitutes a “high-cost area”?
18. The Bipartisan Infrastructure Law provides that BEAD funding can be used in a variety of specific ways, including the provision of service to unserved and underserved areas, connection of community anchor institutions, data collection, installation of service within multi-family residential buildings, and broadband adoption programs. The law also permits the Assistant Secretary to designate other eligible uses that facilitate the program's goals. What additional uses, if any, should NTIA deem eligible for BEAD funding?
19. Community engagement is critical to eliminating barriers to broadband access and adoption. NTIA views strong involvement between states and local communities as key to ensuring that the broadband needs of all unserved and underserved locations are accounted for in state plans submitted for funding. What requirements should NTIA establish for states/territories to ensure that local perspectives are critical factors in the design of state plans?
20. When formulating state broadband plans, what state agencies or stakeholder groups should be considered in the development of those plans?
21. How can NTIA ensure that states/territories consult with Tribal governments about how best to meet Tribal members' needs when providing funding for broadband service to unserved and underserved locations on Tribal lands within state boundaries?
22. The Bipartisan Infrastructure Law requires that BEAD funding recipients offer at least one low-cost broadband option and directs NTIA to determine which subscribers are eligible for that low-cost option. BIL § 60102(h)(5)(A). How should NTIA define the term “eligible subscriber?” In other words, what factors should qualify an individual or household for a low-cost broadband option?
23. Under the Bipartisan Infrastructure Law, states and territories are charged with developing low-cost broadband service options in consultation with NTIA and broadband providers interested in receiving funding within the state. BIL § 60102(h)(5)(B). What factors should NTIA consider in guiding the states in design of these programs to achieve this goal? Should NTIA define a baseline standard for the “low-cost broadband service option” to encourage states/territories to adopt similar or identical definitions and to reduce the administrative costs associated with requiring providers to offer disparate plans in each state and territory? What are the benefits and risks, if any, of such an approach?
24. Affordability is a key objective of the Bipartisan Infrastructure Law's broadband programs. What factors should be considered in the deployment of BEAD funds to help drive affordability beyond the low-cost option?
The Digital Equity Act dedicated $2.75 billion to establish three grant programs that promote digital inclusion and equity to ensure that all individuals and communities have the skills, technology, and capacity needed to reap the full benefits of our digital economy. The goal of these programs is to promote the meaningful adoption and use of broadband services across targeted populations, including low-income households, aging populations, incarcerated individuals, veterans, individuals with disabilities, individuals with a language barrier, racial and ethnic minorities, and rural inhabitants.
As noted above, given the sequence of programs that NTIA is implementing, NTIA intends to release another request for comment (RFC) in the future to address the State Digital Equity Capacity Grant Program and Digital Equity Competitive Grant Programs. The questions below are specific to the Digital Equity Planning Grant Program.
25. The Bipartisan Infrastructure Law includes historic investments in digital inclusion and digital equity, promising to bring all Americans the benefits of connectivity irrespective of age, income, race or ethnicity, sex, gender, disability status, veteran status, or any other characteristic. NTIA seeks to ensure that states use Digital Equity Planning Grants to their best effect. What are the best practices NTIA should require of states in building Digital Equity Plans? What are the most effective digital equity and adoption interventions states should include in their digital equity plans and what evidence of outcomes exists for those solutions?
26. Some states and territories will benefit from technical assistance in preparing Digital Equity Plans. What types of technical assistance, support, data, or programmatic requirements should NTIA provide to states and territories to produce State Digital Equity Plans that fully address gaps in broadband adoption, promote digital skills, advance equitable access to education, healthcare and government services, and build information technology capacity to enable full participation in the economy for covered populations? What steps, if any, should NTIA take to monitor and assess these practices?
27. Equity is also a named goal of the BEAD program described above. How should NTIA ensure that State Digital Equity Plans and the plans created by states and territories for the BEAD program are complementary, sequenced and integrated appropriately to address the goal of universal broadband access and adoption?
28. How should NTIA ensure that State Digital Equity Plans impact and interact with the State's goals, plans and outcomes related to: (i) Economic and workforce development; (ii) education; (iii) health; (iv) civic and social engagement; (v) climate and critical infrastructure resiliency; and (vi) delivery of other essential services, especially with respect to covered populations mentioned in Bipartisan Infrastructure Law § 60303(2)(C)?
29. The Bipartisan Infrastructure Law directs states and territories to include in their digital equity plans “measurable objectives for documenting and promoting: (i) The availability of, and affordability of access to, fixed and wireless broadband technology; (ii) the online accessibility and inclusivity of public resources and services; (iii) digital literacy; (iv) awareness of, and the use of, measures to secure the online privacy of, and cybersecurity with respect to, an individual; and (v) the availability and affordability of consumer devices and technical support for those devices.” What best practices, if any, should states follow in developing such objectives? What steps, if any, should NTIA take to promote or require adoption of these best practices? What additional guidance and oversight about the content of the State Digital Equity Plans should NTIA provide?
30. The Bipartisan Infrastructure Law requires state and territories to consult with historically marginalized and disadvantaged groups, including individuals who live in low-income households, aging individuals, incarcerated individuals (other than individuals who are incarcerated in a Federal correctional facility), veterans, individuals with disabilities, individuals with a language barrier (including individuals who are English learners and have low levels of literacy), individuals who are members of a racial or ethnic minority group, and individuals who primarily reside in a rural area. What steps should NTIA take to ensure that states consult with these groups as well as any other potential beneficiaries of digital inclusion and digital equity programs, when planning, developing, and implementing their State Digital Equity Plans? What steps, if any, should NTIA take to monitor and assess these practices?
31. The Bipartisan Infrastructure Law also requires states and territories to coordinate with local governments and other political subdivisions in developing State Digital Equity Plans. What steps should states take to fulfill this mandate? How should NTIA assess whether a state has engaged in adequate coordination with its political subdivisions?
This MMBI is a $1 billion program for the construction, improvement, or acquisition of middle-mile infrastructure. The purpose of the grant program is to expand and extend middle-mile infrastructure to reduce the cost of connecting unserved and underserved areas to the internet backbone. Eligible applicants include states, political subdivisions of a State, tribal governments, technology companies, electric utilities, utility cooperatives, public utility districts, telecommunications companies, telecommunications cooperatives, nonprofit foundations, nonprofit corporations, nonprofit institutions, nonprofit associations, regional planning councils, Native entities, or economic development authorities.
32. Middle-mile infrastructure is essential to American connectivity. Lack of affordable middle-mile access can have a substantial impact on the retail prices charged for broadband services. How should the Assistant Secretary ensure that middle-mile investments are appropriately targeted to areas where middle-mile service is non-existent or relatively expensive? To what extent should middle-mile grants be targeted to areas in which middle-mile facilities exist but cannot economically be utilized by providers that do not own them? Should NTIA target middle-mile funds to areas where interconnection and backhaul costs are impacted by a lack of competition or other high-cost factors?
33. The Bipartisan Infrastructure Law's provisions regarding the Middle Mile Broadband Infrastructure Grant Program set out a range of considerations governing NTIA's assessment of proposals seeking middle-mile funding, including improving affordability, redundancy and resiliency in existing markets, leveraging existing rights-of-way, assets, and infrastructure, and facilitating the development of carrier-neutral interconnection points.
34. What requirements, if any, should NTIA impose on federally funded middle-mile projects with respect to the placement of splice points and access to those splice points? Should NTIA impose other requirements regarding the location or locations at which a middle-mile grantee must allow interconnection by other providers?
35. How can the Middle Mile Broadband Infrastructure program leverage existing middle-mile facilities, access to rights of way, poles, conduit, and other infrastructure and capabilities that are owned, operated, or maintained by traditional and non-traditional providers (public and investor-owned utilities, grid operators, co-ops, academic institutions, cloud service providers, and others) to accelerate the deployment of affordable, accessible, high-speed broadband service to all Americans? What technical assistance or guidance should NTIA provide to encourage applications for this program? Are there examples of successful deployments and/or benefits provided by non-traditional providers to highlight?
36. As network demand grows, capacity needs in the middle mile and network core grow as well. What scalability requirements, if any, should NTIA place on middle-mile grant recipients?
Corporation for National and Community Service.
Notice of information collection; request for comment.
The Corporation for National and Community Service, operating as AmeriCorps, has submitted a public information collection request (ICR) entitled Day of Service Project Collection Tool for review and approval in accordance with the Paperwork Reduction Act.
Written comments must be submitted to the individual and office listed in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of this ICR, with applicable supporting documentation, may be obtained by calling AmeriCorps, Rhonda Taylor, at 202-355-2202 or by email to
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, 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;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose 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.
A 60-day Notice requesting public comment was published in the
Corporation for National and Community Service.
Notice of information collection; request for comment.
The Corporation for National and Community Service, operating as AmeriCorps, has submitted a public information collection request (ICR) entitled Schools of National Service for review and approval in accordance with the Paperwork Reduction Act.
Written comments must be submitted to the individual and office listed in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of this ICR, with applicable supporting documentation, may be obtained by calling AmeriCorps, Rhonda Taylor, at 202-355-2202 or by email to
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, 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;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose 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.
A 60-day Notice requesting public comment was published in the
Federal Student Aid, 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 February 9, 2022.
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this notice to
For specific questions related to collection activities, please contact 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.
Office of Elementary and Secondary Education (OESE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is requesting the Office of Management and Budget (OMB) to conduct an emergency review of a revision of a currently approved collection.
The Department is requesting emergency processing and OMB approval for this information collection by January 26, 2022; and therefore, the Department is requesting public comments no later than January 25, 2022. A regular clearance process is also hereby being initiated to provide the public with the opportunity to comment under the full comment period. Interested persons are invited to submit comments on or before March 11, 2022.
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 Gloria Tanner, (202) 453-5596.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
The Department addressed all public comments from the recently approved information collection. The only change to the approved collection is the additional three questions to address the use of SEA reserve funds. When considering your comments, please refer to Attachment A, which outlines the additional 3 questions.
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 February 9, 2022.
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this notice to
For specific questions related to collection activities, please contact 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
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 February 9, 2022.
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this notice to
For specific questions related to collection activities, please contact 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.
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.
Department of Energy.
Notice of open meeting.
The Department of Energy hereby publishes a notice of open meeting on January 25, 2022, of the Secretary of Energy Advisory Board (SEAB). Due to the COVID-19 pandemic, this meeting will be held virtually for members of the public and in-person at DOE Headquarters, James V. Forrestal Building, 1000
Tuesday, January 25, 2022; 9 a.m.-2 p.m.
Virtual meeting for members of the general public. To track attendees, registration is required using the following link:
Christopher Lawrence, Designated Federal Officer, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585; email:
Individuals and representatives of organizations who would like to offer comments and suggestions may do so during the meeting. Approximately 15 minutes will be reserved for public comments. Time allotted per speaker will depend on the number who wish to speak but will not exceed five minutes. The Designated Federal Officer is empowered to conduct the meeting in a fashion that will facilitate the orderly conduct of business. Those wishing to speak should register to do so via email,
Those not able to attend the meeting or who have insufficient time to address the committee are invited to send a written statement to Christopher Lawrence, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585, or email to:
Office of Fossil Energy and Carbon Management, Department of Energy.
Notice of application.
The Office of Fossil Energy and Carbon Management (FECM) of the Department of Energy (DOE) gives notice (Notice) of receipt of an application (Application), filed on December 3, 2021 (as corrected on December 10, 2021), by Venture Global Calcasieu Pass, LLC (Calcasieu Pass). In relevant part, Calcasieu Pass requests a limited amendment of its existing authorization to export domestically produced liquefied natural gas (LNG) to non-free trade agreement (non-FTA) countries, issued in Order No. 4346. The amendment would increase Calcasieu Pass's approved non-FTA export volume from 620 billion cubic feet per year (Bcf/yr) to 640.666 Bcf/yr of natural gas—an increase of 20.666 Bcf/yr. Calcasieu Pass filed the Application under the Natural Gas Act (NGA).
Protests, motions to intervene, or notices of intervention, as applicable, and written comments are to be filed electronically as detailed in the Public Comment Procedures section no later than 4:30 p.m., Eastern time, March 11, 2022.
Although DOE has routinely accepted public comment submissions through a variety of mechanisms, including postal mail and hand delivery/courier, DOE has found it necessary to make temporary modifications to the comment submission process in light of the ongoing Covid-19 pandemic. DOE is currently accepting only electronic submissions at this time. If a commenter finds that this change poses an undue hardship, please contact Office of Resource Sustainability staff at (202) 586-2627 or (202) 586-4749 to discuss the need for alternative arrangements. Once the Covid-19 pandemic health emergency is resolved, DOE anticipates resuming all of its regular options for public comment submission, including postal mail and hand delivery/courier.
In Order No. 4346, issued on March 5, 2019, in Docket Nos. 13-69-LNG, 14-88-LNG, 15-25-LNG (consolidated), DOE authorized Calcasieu Pass to export domestically produced LNG in a volume equivalent to 620 Bcf/yr of natural gas.
In the Application, as relevant here,
Calcasieu Pass further states that it has filed an application with the Federal Energy Regulatory Commission (FERC) asking FERC to amend its NGA section 3 authorization to increase the Project's authorized peak liquefaction capacity under optimal conditions to 12.4 mtpa of LNG.
Calcasieu Pass states that the proposed increase in its non-FTA export volume will not require the construction of any new facilities or the modification of the previously authorized Project facilities, nor will it require any other changes to its non-FTA authorization.
Additional details can be found in Calcasieu Pass's Application and the email amendment to the Application, posted on the DOE website in Docket Nos. 13-69-LNG, 14-88-LNG, and 15-25-LNG, and available here:
In reviewing the Application, DOE will consider any issues required by law or policy. DOE will consider domestic need for the natural gas, as well as any other issues determined to be appropriate, including whether the arrangement is consistent with DOE's policy of promoting competition in the marketplace by allowing commercial parties to freely negotiate their own trade arrangements. As part of this analysis, DOE will consider the study entitled,
Additionally, DOE will consider the following environmental documents:
•
•
•
The National Environmental Policy Act (NEPA), 42 U.S.C. 4321
In response to this Notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable. Interested parties will be provided 60 days from the date of publication of this Notice in which to submit comments, protests, motions to intervene, or notices of intervention.
Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention. The filing of comments or a protest with respect to the Application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the Application. All protests, comments, motions to intervene, or notices of intervention must meet the requirements specified by the regulations in 10 CFR part 590.
As noted, DOE is only accepting electronic submissions at this time. Please email the filing to
The Application and any filed protests, motions to intervene, notices of interventions, and comments will also be available electronically by going to the following DOE Web address:
A decisional record on the Application will be developed through responses to this Notice by parties, including the parties' written comments and replies thereto. Additional procedures will be used as necessary to achieve a complete understanding of the facts and issues. If an additional procedure is scheduled, notice will be provided to all parties. If no party requests additional procedures, a final Opinion and Order may be issued based on the official record, including the Application and responses filed by parties pursuant to this Notice, in accordance with 10 CFR 590.316.
Office of Fossil Energy and Carbon Management, Department of Energy.
Notice of application.
The Office of Fossil Energy and Carbon Management (FECM) of the Department of Energy (DOE) gives notice (Notice) of receipt of an Application (Application), filed on December 2, 2021, and supplemented on December 17, 2021, by Venture Global CP2 LNG, LLC (CP2 LNG). CP2 LNG requests long-term, multi-contract authorization to export domestically produced liquefied natural gas (LNG) in a volume equivalent to 1,446 billion cubic feet per year (Bcf/yr) of natural gas from the proposed CP2 LNG Project (Project), to be located in Cameron Parish, Louisiana. CP2 LNG filed the Application under the Natural Gas Act (NGA).
Protests, motions to intervene, or notices of intervention, as applicable, and written comments are to be filed electronically as detailed in the Public Comment Procedures section no later than 4:30 p.m., Eastern time, March 11, 2022.
Although DOE has routinely accepted public comment submissions through a variety of mechanisms, including postal mail and hand delivery/courier, DOE has found it necessary to make temporary modifications to the comment submission process in light of the ongoing Covid-19 pandemic. DOE is currently accepting only electronic submissions at this time. If a commenter finds that this change poses an undue hardship, please contact Office of Resource Sustainability staff at (202) 586-2627 or (202) 586-4749 to discuss the need for alternative arrangements. Once the Covid-19 pandemic health emergency is resolved, DOE anticipates resuming all of its regular options for public comment submission, including postal mail and hand delivery/courier.
Amy Sweeney or Jennifer Wade, U.S. Department of Energy (FE-34), Office of Fossil Energy and Carbon Management,
Cassandra Bernstein, U.S. Department of Energy (GC-76), Office of the Assistant General Counsel for Electricity and Fossil Energy, Forrestal Building, Room 6D-033, 1000 Independence Avenue SW, Washington, DC 20585, (202) 586-9793,
In the Application, CP2 LNG requests authorization to export domestically produced LNG from its proposed Project to be located on the east side of the Calcasieu Ship Channel, and the nearby Monkey Island, in Cameron Parish, Louisiana.
CP2 LNG requests the authorization on its own behalf and as agent for other entities that will hold title to the LNG at the point of export. CP2 LNG is seeking the long-term non-FTA authorization for a term to commence on the earlier of the date of first export or seven years from the date the requested authorization is granted, and to extend through December 31, 2050. Additionally, CP2 LNG requests that its long-term authorization allow for the export of a portion of the proposed volume on a short-term or spot basis, consistent with DOE policy.
Additional details can be found in CP2 LNG's Application, posted on the DOE website at:
In reviewing the Application, DOE will consider any issues required by law or policy. DOE will consider domestic need for the natural gas, as well as any other issues determined to be appropriate, including whether the arrangement is consistent with DOE's policy of promoting competition in the marketplace by allowing commercial parties to freely negotiate their own trade arrangements. As part of this analysis, DOE will consider the study entitled,
Additionally, DOE will consider the following environmental documents:
•
•
•
Parties that may oppose this Application should address these issues and documents in their comments and protests, as well as other issues deemed relevant to the Application.
The National Environmental Policy Act (NEPA), 42 U.S.C. 4321
In response to this Notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable. Interested parties will be provided 60 days from the date of publication of this Notice in which to submit comments, protests, motions to intervene, or notices of intervention.
Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention. The filing of comments or a protest with respect to the Application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the Application. All protests, comments, motions to intervene, or notices of intervention must meet the requirements specified by the regulations in 10 CFR part 590.
As noted, DOE is only accepting electronic submissions at this time. Please email the filing to
The Application and any filed protests, motions to intervene, notices of interventions, and comments will also be available electronically by going to the following DOE web address:
A decisional record on the Application will be developed through responses to this Notice by parties, including the parties' written comments and replies thereto. Additional procedures will be used as necessary to achieve a complete understanding of the facts and issues. If an additional procedure is scheduled, notice will be provided to all parties. If no party requests additional procedures, a final Opinion and Order may be issued based on the official record, including the Application and responses filed by parties pursuant to this Notice, in accordance with 10 CFR 590.316.
Take notice that on December 27, 2021, City of Pasadena, California submitted its tariff filing: 2022 Transmission Revenue Balancing Account Adjustment/Existing Transmission Contracts update, to be effective January 1, 2022.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Take notice that on December 23, 2021, City of Riverside, California submitted its tariff filing: 2022 Transmission Revenue Balancing Account Adjustment/Existing Transmission Contracts update, to be effective January 1, 2022.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Take notice that on December 29, 2021, City of Colton, California submitted its tariff filing: 2022 Transmission Revenue Balancing Account Adjustment/Existing Transmission Contracts update, to be effective January 1, 2022.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental document that will discuss the environmental impacts of the Wahpeton Expansion Project involving construction and operation of facilities by WBI Energy Transmission, Inc. (WBI Energy) in Cass and Richland Counties, North Dakota. The Commission will use this environmental document in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies regarding the project. As part of the National Environmental Policy Act (NEPA) review process, the Commission takes into account concerns the public may have about proposals and the environmental impacts that could result from its action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. This gathering of public input is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the environmental document on the important environmental issues. Additional information about the Commission's NEPA process is described below in the
By this notice, the Commission requests public comments on the scope of issues to address in the environmental document. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 p.m. Eastern Standard Time on February 3, 2022. Comments may be submitted in written or oral form. Further details on how to submit comments are provided in the
Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts.
If you submitted comments on this project to the Commission before the opening of this docket on September 27, 2021, you will need to file those comments in Docket No. PF21-4-000 to ensure they are considered.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this planned project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the planned facilities. The company would seek to negotiate a mutually acceptable easement agreement. You are not required to enter into an agreement. However, if the Commission approves the project, the Natural Gas Act conveys the right of eminent domain to the company. Therefore, if you and the company do not reach an easement agreement, the pipeline company could initiate condemnation proceedings in court. In such instances, compensation would be determined by a judge in accordance with state law. The Commission does not subsequently grant, exercise, or oversee the exercise of that eminent domain authority. The courts have exclusive authority to handle eminent domain cases; the Commission has no jurisdiction over these matters.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” addresses typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. This fact sheet along with other landowner topics of interest are available for viewing on the FERC website (
There are four methods you can use to submit your comments to the Commission. Please carefully follow these instructions so that your comments are properly recorded. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the 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 Commission. Be sure to reference the project docket number (PF21-4-000) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426.
Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
(4) In lieu of sending written comments, the Commission invites you to attend one of the virtual public scoping sessions its staff will conduct by telephone, scheduled as follows:
The primary goal of these scoping sessions is to have you identify the specific environmental issues and concerns that should be considered in the environmental document. Individual oral comments will be taken on a one-on-one basis with a court reporter present on the line. This format is designed to receive the maximum amount of oral comments, in a convenient way during the timeframe allotted, and is in response to the ongoing COVID-19 pandemic.
For each scoping session, you may call at any time after 4:30 p.m. Central Standard Time at which time you will be placed on mute and hold. Calls will be answered in the order they are received. Once answered, you will have the opportunity to provide your comment directly to a court reporter, with FERC staff, or FERC staff representative present on the line. A time limit of three minutes will be implemented for each commentor.
Transcripts of all comments received during the scoping session(s) will be publicly available on FERC's eLibrary system (see the last page of this notice for instructions on using eLibrary).
It is important to note that the Commission provides equal consideration to all comments received, whether filed in written form or provided orally at a virtual scoping session.
Additionally, the Commission offers a free service called eSubscription, which makes it easy to stay informed of all issuances and submittals regarding the dockets/projects to which you subscribe. These instant email notifications are the fastest way to receive notification and provide a link to the document files which can reduce the amount of time you spend researching proceedings. Go to
WBI Energy plans to construct and operate about 58.7 miles of 12-inch-diameter natural gas pipeline from WBI Energy's existing Mapleton Compressor Station near Mapleton, North Dakota to a new meter station near Wahpeton, North Dakota. The Wahpeton Expansion Project would provide about 20.6 million standard cubic feet of natural gas per day to southeastern North Dakota. According to WBI Energy, the project would provide additional natural gas supply to Wahpeton, North Dakota and new natural gas service to Kindred, North Dakota, as requested by Montana-Dakota Utilities Company (MDU).
In addition to the pipeline facilities, the Wahpeton Expansion Project would also include the following facilities:
• Modifications (installation of additional equipment and facilities, but no additional compression) to WBI Energy's existing Mapleton Compressor Station in Cass County, North Dakota;
• two delivery stations (MDU-Kindred Border Station and MDU-Wahpeton Border Station) in Cass and Richland Counties (respectively), North Dakota;
• seven block valve settings;
• four pig launcher/receiver settings at block valve settings 1, 2, 5, and 7;
• farm taps.
The general location of the project facilities is shown in appendix 1.
Construction of the planned facilities would disturb at least 533.7 acres of land for the aboveground facilities and the pipeline. Following construction, WBI Energy would maintain at least 358.8 acres for permanent operation of the project's facilities; the remaining acreage would be restored and reverted to former uses. The preliminary estimate of acreages affected would likely increase as the planned project's design advances. About 61 percent of the planned pipeline route parallels existing electric transmission line and road rights-of-way.
Any environmental document issued by Commission staff will discuss impacts that could occur as a result of the construction and operation of the planned project under the relevant general resource areas:
• geology and soils;
• water resources and wetlands;
• vegetation and wildlife;
• threatened and endangered species;
• cultural resources;
• land use;
• socioeconomics and environmental justice;
• air quality and noise;
• climate change; and
• reliability and safety.
Commission staff have already identified several issues that deserve attention based on a preliminary review of the planned facilities and the environmental information provided by WBI Energy. This preliminary list of issues may change based on your comments and our analysis:
• potential effects on drain tiles;
• impacts on waterbodies; and
• impacts on soils and restoration of impacted farmland.
Commission staff will also evaluate reasonable alternatives to the planned project or portions of the project and make recommendations on how to lessen or avoid impacts on the various resource areas. Your comments will help Commission staff identify and focus on the issues that might have an effect on the human environment and potentially eliminate others from further study and discussion in the environmental document.
Although no formal application has been filed, Commission staff have already initiated a NEPA review under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of interested stakeholders and to identify and resolve issues before the Commission receives an application. As part of the pre-filing review, Commission staff will contact federal and state agencies to discuss their involvement in the scoping process and the preparation of the environmental document.
If a formal application is filed, Commission staff will then determine whether to prepare an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). The EA or the EIS will present Commission staff's independent analysis of the environmental issues. If Commission staff prepares an EA, a
With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues related to this project to formally cooperate in the preparation of the environmental document.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the North Dakota State Historic Preservation Officer, and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project and includes a mailing address with their comments. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or
If you need to make changes to your name/address, or if you would like to remove your name from the mailing list, please complete one of the following steps:
(1) Send an email to
(2) Return the attached “Mailing List Update Form” (appendix 2).
Once WBI Energy files its application with the Commission, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Only intervenors have the right to seek rehearing of the Commission's decision and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214). Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
Public sessions or site visits will be posted on the Commission's calendar located at
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l. In addition to publishing the full text of this document in the
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
Take notice that on December 21, 2021, City of Banning, California submitted its tariff filing: 2022 Transmission Revenue Balancing Account Adjustment/Existing Transmission Contracts update, to be effective January 1, 2022.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
k.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, it must also serve a copy of the document on that resource agency.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
Take notice that on December 23, 2021, City of Azusa, California submitted its tariff filing: 2022 Transmission Revenue Balancing Account Adjustment/Existing Transmission Contracts update, to be effective January 1, 2022.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link 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.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
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:
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 Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. 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 OMB 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 OMB control number.
Written PRA comments should be submitted on or before March 11, 2022. 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 Cathy Williams, FCC, via email to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
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 Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. 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 OMB 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 OMB control number.
Written PRA comments should be submitted on or before March 11, 2022. 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 Cathy Williams, FCC, via email to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, 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. Pursuant to the Small Business Paperwork Relief Act of 2002, the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) 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 OMB control number.
Written comments and recommendations for the proposed information collection should be submitted on or before February 9, 2022.
Comments should be sent to
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418-2991. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the FCC invited the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: (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 burden estimates; (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 the respondents, including the use of automated collection techniques or other forms of information technology. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
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 allow equipment manufacturers to better gauge consumer interest and prepare for new product launches.
Thursday, January 13, 2022 at 10:00 a.m.
Virtual meeting.
This meeting will be open to the public. To access the virtual meeting, go to the commission's website
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Federal Housing Finance Agency.
Notice.
The Federal Housing Finance Agency (FHFA) has adjusted the cap on average total assets that is used in determining whether a Federal Home Loan Bank (Bank) member qualifies as a “community financial institution” (CFI) to $1,323,000,000, based on the annual percentage increase in the Consumer Price Index for all urban consumers (CPI-U), as published by the Department of Labor (DOL). These changes took effect on January 1, 2022.
Janna Bruce, Division of Federal Home Loan Bank Regulation, (202) 649-3202,
The Federal Home Loan Bank Act (Bank Act) confers upon insured depository institutions that meet the statutory definition of a CFI certain advantages over non-CFI insured depository institutions in qualifying for Bank membership, and in the purposes for which they may receive long-term advances and the collateral they may pledge to secure advances.
As of January 1, 2022, FHFA increased the CFI asset cap to $1,323,000,000, which reflects a 6.8 percent increase in the unadjusted CPI-U from November 2020 to November 2021. Consistent with the practice of other Federal agencies, FHFA bases the annual adjustment to the CFI asset cap on the percentage increase in the CPI-U from November of the year prior to the preceding calendar year to November of the preceding calendar year, because the November figures represent the most recent available data as of January 1st of the current calendar year. The new CFI asset cap was obtained by applying the percentage increase in the CPI-U to the unrounded amount for the preceding year and rounding to the nearest million, as has been FHFA's practice for all previous adjustments.
In calculating the CFI asset cap, FHFA uses CPI-U data that have not been seasonally adjusted (
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than January 25, 2022.
A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than February 9, 2022.
1.
1.
1.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, and the Office of Management and Budget (OMB) regulations, DoD, GSA, and NASA invite the public to comment on an extension concerning North Carolina sales tax certification. DoD, GSA, and NASA invite comments on: Whether the proposed collection of information is necessary for the proper performance of the functions of Federal Government acquisitions, including whether the information will have practical utility; the accuracy of the estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. OMB has approved this information collection for use through March 31, 2022. DoD, GSA, and NASA propose that OMB extend its approval for use for three additional years beyond the current expiration date.
DoD, GSA, and NASA will consider all comments received by March 11, 2022.
DoD, GSA, and NASA invite interested persons to submit comments on this collection through
Zenaida Delgado, Procurement Analyst, at telephone 202-969-7207, or
This clearance covers the information that contractors must submit to comply with the requirements of the Federal Acquisition Regulation clause at 52.229-2, North Carolina State and Local Sales and Use Tax. This clause requires contractors for construction or vessel repair to be performed in North Carolina to provide certified statements setting forth the cost of the property purchased from each vendor and the amount of sales or use taxes paid. The North Carolina Sales and Use Tax Act authorizes counties and incorporated cities and towns, to obtain each year from the Commissioner of Revenue of the State of North Carolina, a refund of sales and use taxes indirectly paid on building materials, supplies, fixtures, and equipment that become a part of or are annexed to any building or structure in North Carolina. However, to substantiate a refund claim for sales or use taxes paid on purchases of building materials, supplies, fixtures, or equipment by a contractor, the Government must secure from the contractor certified statements setting forth the cost of the property purchased from each vendor and the amount of sales or use taxes paid. Similar certified statements by subcontractors must be obtained by the general contractor and furnished to the Government.
The Government will use the information as evidence to establish exemption from State and local taxes.
U.S. Government Accountability Office (GAO).
Request for letters of nomination and resumes.
The Balanced Budget Act of 1997 established the Medicare Payment Advisory Commission (MedPAC) and gave the Comptroller General responsibility for appointing its members. GAO is now accepting nominations for MedPAC appointments that will be effective in May 2022. Nominations should be sent to the email address listed below. Acknowledgement of receipt will be provided within a week of submission.
Letters of nomination and resumes should be submitted no later than February 11, 2022, to ensure adequate opportunity for review and consideration of nominees prior to appointment.
Submit letters of nomination and resumes to
Gregory Giusto at (202) 512-8268 or
Notice.
The Centers for Disease Control and Prevention (CDC) is seeking nominations for membership on the ACBCYW. The ACBCYW consists of 15 experts in fields associated with breast cancer, disease prevention, early detection, diagnosis, public health, social marketing, genetic screening and counseling, treatment, rehabilitation, palliative care, and survivorship in young women, or in related disciplines with a specific focus on young women.
Nominations for membership on the ACBCYW must be received no later than February 28, 2022. Packages received after this time will not be considered for the current membership cycle.
All nominations should be mailed to Kimberly E. Smith, MBA, MHA, ACBCYW Secretariat, Centers for Disease Control and Prevention, 4770 Buford Highway, MS S107-4, Chamblee, Georgia 30341-3717, or emailed to
Kimberly E. Smith, MBA, MHA, Designated Federal Officer, National Center for Chronic Disease Prevention and Health Promotion, CDC, 4770 Buford Highway NE, Mailstop S107-4, Atlanta, Georgia 30341; Telephone: (404) 498-0073; Email:
Nominations are being sought for individuals who have expertise and qualifications necessary to contribute to the accomplishments of the committee's objectives. Nominees will be selected based on expertise in the fields of breast health, breast cancer, disease prevention and risk reduction, survivorship (including metastatic breast cancer), hereditary breast and ovarian cancer (HBOC), or in related disciplines with a specific focus on young women. Persons with personal experience with early onset breast cancer are also eligible to apply. This includes but may not be limited to breast cancer survivors <45 years of age and caregivers of said persons. Selection of members is based on candidates' qualifications to contribute to the accomplishment of
The U.S. Department of Health and Human Services policy stipulates that committee membership be balanced in terms of points of view represented, and the committee's function. Appointments shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, gender identity, HIV status, disability, and cultural, religious, or socioeconomic status. Nominees must be U.S. citizens, and cannot be full-time employees of the U.S. Government. Current participation on federal workgroups or prior experience serving on a federal advisory committee does not disqualify a candidate; however, HHS policy is to avoid excessive individual service on advisory committees and multiple committee memberships. Committee members are Special Government Employees (SGEs), requiring the filing of financial disclosure reports at the beginning and annually during their terms. CDC reviews potential candidates for ACBCYW membership each year and provides a slate of nominees for consideration to the Secretary of HHS for final selection. HHS notifies selected candidates of their appointment near the start of the term in November 2022, or as soon as the HHS selection process is completed. Note that the need for different expertise varies from year to year and a candidate who is not selected in one year may be reconsidered in a subsequent year. SGE nominees must be U.S. citizens, and cannot be full-time employees of the U.S. Government. Candidates should submit the following items:
Current curriculum vitae, including complete contact information (telephone numbers, mailing address, email address).
At least one letter of recommendation from person(s) not employed by the U.S. Department of Health and Human Services. (Candidates may submit letter(s) from current HHS employees if they wish, but at least one letter must be submitted by a person not employed by an HHS agency (
A short biography (150 words or less).
Nominations may be submitted by the candidate him- or herself, or by the person/organization recommending the candidate.
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
Office of Head Start, Administration for Children and Families, HHS.
Request for public comment.
The Administration for Children and Families (ACF) is requesting a 3-year extension of the Head Start Grant Application Instrument and Instructions (OMB #0970-0207, expiration 04/30/2022). There are no substantive changes requested to the instruments, but a few minor changes have been made to the reporting structure of applications related to facilities to reflect the information already being submitted by grant recipients.
You can obtain copies of the proposed collection of information and submit comments by emailing
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with the Paperwork Reduction Act of 1995, HRSA has submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period. OMB may act on HRSA's ICR only after the 30-day comment period for this notice has closed.
Comments on this ICR should be received no later than February 9, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request a copy of the clearance requests submitted to OMB for review, email Samantha Miller, the acting HRSA Information Collection Clearance Officer at
A 60-day notice was published in the
The 60-day notice proposed data collection changes to existing data collection forms related to Vascularized Composite Allograft (VCA) transplantation, to implement policies approved by the OPTN Board of Directors. The OPTN expects to make additional changes to these VCA data collection forms in the near future so implementation of data collection changes has been postponed. These data collection changes are not included in this 30-day notice and will be included for review in a future submission.
This is a request to revise the current OPTN data collection associated with an individual's clinical characteristics at the time of registration, transplant, and follow-up after the transplant to include data collection forms in the OPTN Organ Labeling, Packaging, and Tracking System, the OPTN Kidney Paired Donation Pilot Program (KPDPP), and the OPTN Patient Safety Reporting Portal (PSRP). This revision also includes OPTN Board of Directors-approved changes to the existing OMB data collection forms. These specific data elements of the OPTN data system are collected from transplant hospitals, organ procurement organizations, and histocompatibility laboratories. The information is used to (1) facilitate organ placement and match donor organs with recipients; (2) monitor compliance of member organizations with Federal laws and regulations and with OPTN requirements; (3) review and report periodically to the public on the status of organ donation and transplantation in the United States; (4) provide data to researchers and government agencies to study the scientific and clinical status of organ transplantation; (5) perform transplantation-related public health surveillance including the possible transmission of donor disease.
HRSA is submitting the following changes to improve the OPTN organ matching and allocation process and improve OPTN member compliance with OPTN requirements. All of these proposed changes have been approved by the OPTN Board of Directors.
(1) Adding data collection forms for the OPTN Organ Labeling, Packaging, and Tracking System to the existing OMB-approved Data System for Organ Procurement and Transplantation Network. The system has two forms that are used through mobile and web-based applications to ensure the correct organ is transplanted into the correct patient, minimize labeling and transport errors, accelerate organ information transfer, and capture data regarding organ procurement. OPTN Organ Labeling, Packaging and Tracking System is comprised of two data collection forms: Organ labeling and packaging, and organ tracking and validating.
(2) Adding data collection forms for the OPTN KPDPP to the existing OMB-approved Data System for Organ Procurement and Transplantation Network. Kidney paired donation is a transplant option for those patients waiting for a kidney transplant who have a willing living donor who is medically able but cannot donate a kidney to their intended candidate because they are incompatible. OPTN KPDPP matches living donors, and their intended candidates with other living donors or intended candidate pairs when the living donors cannot donate to the person(s) they initially hoped would receive their kidney. OPTN KPDPP is comprised of three data collection forms: Candidate registration, donor registration, and match offer management.
(3) Adding data collection forms in the OPTN PSRP to the existing OMB-approved Data System for Organ Procurement and Transplantation Network. OPTN PSRP allows the OPTN to collect reports on any event or process variance that could cause concerns from transplantation, donation, safety, or quality perspective. OPTN PSRP is comprised of four data collection forms: Disease transmission event, living donor event, safety situation, and potential disease transmission.
(4) Adding a request to unlock form
(5) Additional revisions to existing data collection forms were made based on the OPTN Board of Directors-approved changes to improve organ matching, allocation, and OPTN policy compliance.
The total burden hours in the OMB inventory increased by 4,337 hours from the previously OMB-approved data collection package from August 25, 2020. This increase is due to including new data collection forms and additional data to existing data collection forms. However, the total burden hours of this request is less than the total burden hours presented in the 60-day notice, because of the removal of the proposed data collection changes associated with implementing the “Modify Data Collection on VCA Living Donors” and “Programming VCA Allocation in UNet” policies.
HRSA specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Office of Minority Health, Office of the Secretary, Department of Health and Human Services.
Deadline extension for notice of solicitation of nominations for delegates for the Center for Indigenous Innovation and Health Equity Tribal Advisory Committee.
On October 1, 2021, the U.S. Department of Health and Human Services (HHS) Office of Minority Health (OMH) published a notice in the
Nomination letters for the Center TAC must be sent to the address noted below no later than 11:59 p.m. EST on March 11, 2022.
All nominations should be emailed to: Violet Woo, Designated Federal Officer for the Center TAC, at
For information and guidance about the nomination process for Center TAC delegates, please contact Violet Woo, Designated Federal Officer at
On October 1, 2021, the notice of solicitation of nominations for delegates for the Center TAC was published in the
Authorized under Section 1707 of the Public Health Service Act, 42 U.S.C. 300u-6, as amended, the mission of OMH is to improve the health of racial and ethnic minority populations through the development of health policies and programs that help eliminate health disparities. OMH awards and other activities are intended to support the identification of effective policies, programs, and practices for improving health outcomes and to promote the sustainability and dissemination of these approaches.
Under the authority of Public Law 116-260 (2021 Consolidated Appropriations Act), Congress directed OMH to create a Center to support research, education, service, and policy development advancing Indigenous solutions that ultimately address health disparities in American Indian/Alaska Native (AI/AN) and Native Hawaiian and Pacific Islander (NHPI) populations. OMH is establishing the Center TAC to ensure that Tribal Leaders have meaningful and timely input in the
OMH recommends a term of two (2) years term for each delegate, but delegates' term length will be established by the TAC's charter.
Center TAC nomination guidance and sample nomination letters are available on the OMH website's Tribal Leader Letters section:
In the event that there is more than one nomination for a given IHS area, OMH will make a determination of representation based on submitted nomination materials.
Nominees will be notified of the status of delegate selection in April 2022.
The Indian Health Service (IHS) is accepting applications for cooperative agreements for the Urban Indian Education and Research Organization Program. This program is authorized under the Snyder Act, 25 U.S.C. 13; the Transfer Act, 42 U.S.C. 2001(a); and Section 301(a) of the Public Health Service Act, 42 U.S.C. 241(a). This program is described in the Assistance Listings located at
The Office of Urban Indian Health Programs (OUIHP) oversees the implementation of the Indian Health Care Improvement Act (IHCIA) provisions for making health care services more accessible to Urban Indians. Pursuant to those authorities, the IHS enters into contracts and grants with Urban Indian Organizations (UIOs) for the provision of health care and referral services for Urban Indians residing in urban centers. This program provides services and education for UIOs that include the following Five Core Projects: (1) Public policy; (2) research and data; (3) training and technical assistance; (4) education, public relations, and marketing; and (5) payment system reform/monitoring regulations, including addressing the Unmet Needs of the 4-in-1 grantees under any or all of the Five Core Projects.
The purpose of this IHS program is to fund a national Organization to act as an education and research partner for OUIHP and for 41 UIOs in 22 states funded by IHS under the IHCIA.
Applicant is to create and maintain a multi-platform, culturally appropriate and customized system that demonstrates improvements and expansion in education and research services and opportunities. Applicant is to:
1. Identify and assess current, emerging, and new needs and gaps in policy related to UIOs' operations, missions, and goals.
2. Initiate and solidify partnerships with UIOs, epidemiology centers, and other research partners to improve and increase data research on Urban Indian health needs.
3. Support UIO staff and leadership in all areas of training and technical assistance, particularly with the constant changes surrounding health care needs.
4. Market the UIOs through the development of national, regional, and local marketing strategies and campaigns.
5. Understand the critical need to document and analyze current and new Federal regulations impacting UIOs for reimbursement and related types of regulatory activities.
The awardee is required to comply with the “HHS Policy on Promoting Efficient Spending: Use of Appropriated Funds for Conferences and Meeting Space, Food, Promotional Items, and Printing and Publications,” dated January 23, 2015 (Policy), as applicable to conferences funded by grants and cooperative agreements. The Policy is available at
The awardee is required to:
Provide a separate detailed budget justification and narrative for each conference anticipated. The cost categories to be addressed are as follows: (1) Contract/Planner, (2) Meeting Space/Venue, (3) Registration website, (4) Audio Visual, (5) Speakers Fees, (6) Non-Federal Attendee Travel, (7) Registration Fees, and (8) Other (explain in detail and cost breakdown). For additional questions please contact Debi Nalwood at 240-701-0882 or email at
The total funding identified for fiscal year (FY) 2022 is approximately $1,050,000. Award amount for the first budget year is anticipated to be $1,050,000. The funding available for competing and subsequent continuation awards issued under this announcement is subject to the availability of appropriations and budgetary priorities of the Agency. The IHS is under no obligation to make awards that are selected for funding under this announcement.
One award will be issued under this program announcement.
The period of performance is for 5 years.
Cooperative agreements awarded by the Department of Health and Human Services (HHS) are administered under the same policies as grants. However, the funding agency, IHS, is anticipated to have substantial programmatic involvement in the project during the entire period of performance. Below is a detailed description of the level of involvement required of the IHS.
In addition to the usual monitoring and technical assistance provided under the cooperative agreement, the IHS OUIHP responsibilities shall include:
(1) Assuring the availability of services from experienced OUIHP staff to participate in the planning and development of all phases of this cooperative agreement.
(2) Participating in, including the planning of, any meetings conducted as part of the Five Core Projects.
(3) Assisting in establishing Federal interagency contacts necessary for the successful completion of tasks and activities identified in the approved scope of work.
(4) Identifying organizations with whom the awardee will be asked to develop cooperative and collaborative relationships.
(5) Assisting the awardee to establish, review, and update priorities for the Five Core Projects conducted under this cooperative agreement.
(6) Assisting the awardee in determining issues identified post-award to be addressed during the project period, sequence in which they will be addressed, what approaches and strategies will be used to address them, and how relevant information will be transmitted to specified target audiences and used to enhance core project activities and advance the program.
To be eligible for this funding opportunity, applicant must be a national organization with extensive experience providing national awareness, visibility, advocacy, education, and outreach related to Urban Indian health care on a national scale.
The program office will notify any applicants deemed ineligible.
The IHS does not require matching funds or cost sharing for grants or cooperative agreements.
Applications with budget requests that exceed the highest dollar amount outlined under Section II Award Information, Estimated Funds Available, or exceed the period of performance outlined under Section II Award Information, Period of Performance, are considered not responsive and will not be reviewed. The Division of Grants Management (DGM) will notify the applicant.
Organizations claiming nonprofit status must submit a current copy of the 501(c)(3) Certificate with the application.
The application package and detailed instructions for this announcement are available at
Please direct questions regarding the application process to Mr. Paul Gettys at (301) 443-2114 or (301) 443-5204.
Mandatory documents for all applicants include:
• Abstract (one page) summarizing the project.
• Application forms:
1. SF-424, Application for Federal Assistance.
2. SF-424A, Budget Information—Non-Construction Programs.
3. SF-424B, Assurances—Non-Construction Programs.
• Project Narrative (not to exceed 20 pages). See Section IV.2.A, Project Narrative for instructions.
1. Background information on the organization.
2. Proposed scope of work, objectives, and activities that provide a description of what the applicant plans to accomplish.
• Budget Justification and Narrative (not to exceed five pages). See Section IV.2.B, Budget Narrative for instructions.
• Letter of Support from organization's Board of Directors.
• 501(c)(3) Certificate, if applicable.
• Biographical sketches for all Key Personnel (not to exceed one page each).
• Contractor/Consultant proposed scope of work and letter of commitment (not to exceed one page each, if applicable).
• Disclosure of Lobbying Activities (SF-LLL), if applicant conducts reportable lobbying.
• Certification Regarding Lobbying (GG-Lobbying Form).
• Copy of current Negotiated Indirect Cost rate (IDC) agreement (required in order to receive IDC).
• Organizational Chart.
• Documentation of current Office of Management and Budget (OMB) Financial Audit (if applicable).
Acceptable forms of documentation include:
1. Email confirmation from Federal Audit Clearinghouse (FAC) that audits were submitted; or
2. Face sheets from audit reports. Applicants can find these on the FAC website at
All Federal public policies apply to IHS grants and cooperative agreements. Pursuant to 45 CFR 80.3(d), an individual shall not be deemed subjected to discrimination by reason of their exclusion from benefits limited by Federal law to individuals eligible for benefits and services from the IHS. See
A.
Be sure to succinctly answer all questions listed under the evaluation criteria (refer to Section V.1, Evaluation Criteria) and place all responses and required information in the correct section noted below or they will not be considered or scored. If the narrative exceeds the page limit, the application will be considered not responsive and will not be reviewed. The 20-page limit for the narrative does not include the standard forms, line item budgets, budget justifications, narratives, and/or other items.
There are four parts to the narrative: Part 1—Statement of Need; Part 2—Program Information/Proposed Approach; Part 3—Organizational Capacity and Staffing/Administration; and Part 4—Performance Measurement Plan and Evaluation. See below for additional details about what must be included in the narrative.
This section should help reviewers understand the UIOs that will be served by the proposed project. Summarize the overall need for assistance: (1) The target population and its unmet health needs; and (2) sociocultural determinants of health and health disparities impacting the Urban Indian population or communities served and unmet. Demographic data should be used and cited to support the information provided.
Describe the purpose of the proposed project, including a clear statement of goals and objectives. Clearly state how proposed activities address the needs detailed in Part 1, Statement of Need. You are required to address all Five Core Projects in your project narrative, including addressing the Unmet Needs of the 4-in-1 grantees under any or all of the Five Core Projects. Address each project, including Unmet Needs with a corresponding time frame.
Describe your organizational capacity for all Five Core Projects and experience working with UIOs. Outline current staff and future positions for the five program components.
Describe efforts to collect and report project data that will support and demonstrate grant activities for all Five Core Projects, including the Unmet Needs of the 4-in-1 grantees under any or all of the Five Core Projects. Awardee will be required to collect and report data pertaining to activities, processes, and outcomes. Also describe the plan to evaluate program activities. Describe in the evaluation plan the expected results and any identified metrics to support program effectiveness. Incorporate questions related to outcomes and processes, including documentation of lessons learned.
B.
Applications must be submitted through
If technical challenges arise and assistance is required with the application process, contact
The IHS will not acknowledge receipt of applications.
Executive Order 12372 requiring intergovernmental review is not applicable to this program.
• Pre-award costs are not allowable.
• The available funds are inclusive of direct and indirect costs.
• Only one cooperative agreement may be awarded per applicant.
All applications must be submitted via
If the applicant cannot submit an application through
Once the waiver request has been approved, the applicant will receive a confirmation of approval email containing submission instructions. A copy of the written approval must be included with the application that is submitted to the DGM. Applications that are submitted without a copy of the signed waiver from the Acting Director of the DGM will not be reviewed. The Grants Management Officer of the DGM will notify the applicant via email of this decision. Applications submitted under waiver must be received by the DGM no later than 5:00 p.m. Eastern Time on the Application Deadline Date. Late applications will not be accepted for processing. Applicants that do not register for both the System for Award Management (SAM) and
Please be aware of the following:
• Please search for the application package in
• If you experience technical challenges while submitting your application, please contact
• Upon contacting
• Applicants are strongly encouraged not to wait until the deadline date to begin the application process through
• Please follow the instructions on
• Applicants must comply with any page limits described in this funding announcement.
• After submitting the application, the applicant will receive an automatic acknowledgment from
Applicants and grantee organizations are required to obtain a DUNS number and maintain an active registration in the SAM database. The DUNS number is a unique 9-digit identification number provided by D&B that uniquely identifies each entity. The DUNS number is site specific; therefore, each distinct performance site may be assigned a DUNS number. Obtaining a DUNS number is easy, and there is no charge. To obtain a DUNS number, please access the request service through
The Federal Funding Accountability and Transparency Act of 2006, as amended (“Transparency Act”), requires all HHS recipients to report information on sub-awards. Accordingly, all IHS grantees must notify potential first-tier sub-recipients that no entity may receive a first-tier sub-award unless the entity has provided its DUNS number to the prime grantee organization. This requirement ensures the use of a universal identifier to enhance the quality of information available to the public pursuant to the Transparency Act.
Organizations that are not registered with SAM must have a DUNS number first, then access the SAM online registration through the SAM home page at
Additional information on implementing the Transparency Act, including the specific requirements for DUNS and SAM, are available on the DGM Grants Management, Policy Topics web page at
Possible points assigned to each section are noted in parentheses. The project narrative and budget narrative should include only the first year of activities; information for multi-year projects should be included as a separate document. See “Multi-year Project Requirements” at the end of this section for more information. The project narrative should be written in a manner that is clear to outside reviewers unfamiliar with prior related activities of the applicant. It should be well organized, succinct, and contain all information necessary for reviewers to fully understand the project. Attachments requested in the criteria do not count toward the page limit for the narratives. Points will be assigned to each evaluation criteria adding up to a total of 100 possible points. Points are assigned as follows:
(1) Describe and document the target population and its unmet needs.
(2) Based on the information and/or data currently available, document the need to implement, sustain, and improve health care services offered to Urban Indians.
(3) Based on available data, describe the service gaps and other problems related to the unmet needs of Urban Indians. Clearly identify the source of the data. Documentation of need may come from a variety of qualitative and quantitative sources. Examples of data sources for the quantitative data that could be used are epidemiologic data such as Tribal Epidemiology Centers or IHS Area Offices, state data from state needs assessments, and/or national data from the Substance Abuse and Mental Health Services Administration's National Survey on Drug Use and Health or from the National Center for Health Statistics/Centers for Disease Control, and U.S. decennial and American Community Survey Census data. This list is not exhaustive. Applicants may submit other valid data, as appropriate for the applicant's programs.
Describe the purpose of the proposed projects, including a clear statement of goals and objectives. Provide a work plan for the first year of the project period that details expected key activities, accomplishments, and includes responsible staff for each of the Five Core Projects, including addressing the Unmet Needs of the 4-in-1 grantees. The project narrative is required to address all Five Core Projects of the program and the Unmet Needs of the 4-in-1 grantees, as outlined below:
(1)
(2)
(3)
(a) Further describe the need for training and technical assistance to support UIO administration in orienting new UIO Leaders and Board of Directors, grant writing, and credentialing and privileging. Describe the need for technical assistance and training for UIOs to effectively engage in the IHS Urban Confer process. Describe the need for UIOs to attract and retain skilled, culturally competent health service providers.
(4)
Describe efforts to increase awareness of health care needs of Urban Indians. Describe efforts to engage UIOs to participate in national health campaigns. Describe the need for enhanced communication among local private and nonprofit health care entities. Summarize the need to enhance communication, interaction, and coordination on policy and health care reform activities by initiating and maintaining partnerships and collaborative relationships with other UIOs, national Indian organizations, key state and local health entities, and education and public safety networks. Describe efforts to strengthen the capacity of UIOs to work as a community to improve knowledge sharing.
(5)
(1) Describe the management capability of the national Urban Indian Organization and other participating organizations demonstrating extensive experience providing national awareness, visibility, advocacy, education, and outreach related to Urban Indian health care on a national scale in administering similar projects. Describe the national Urban Indian Organization's experience providing a national perspective on the needs of Urban Indian communities that will ensure the information developed and disseminated through the projects is appropriate and useful and addresses the most pressing needs of Urban Indian communities.
(2) Identify staff to maintain open and consistent communication with the IHS program official on any financial or programmatic barriers to meeting the requirements of the award.
(3) Identify the department(s) and/or division(s) that will administer all Five Core Projects and the Unmet Needs of the 4-in-1 grantees. Include a description of these department(s) and/or division(s), their functions, and their placement within the national Urban Indian Organization and their direct link to management. Describe the department(s) and/or division(s) responsible for education and outreach efforts described in this announcement and how they will reach the widest audience possible in a timely fashion. Describe the mechanisms in place to conduct communication on a national level and experience with increasing visibility of the health care needs facing Urban Indians nationwide.
(4) Discuss the national Urban Indian Organization's experience and capacity to provide culturally appropriate and competent services to UIOs and specific populations of focus to ensure services provided are appropriately tailored to the needs of Urban Indian communities throughout the country. Describe formal or informal relationships that have been established with UIOs that will foster open and honest exchange of information, facilitate participation by Urban Indian communities, and demonstrate that the national Urban Indian Organization is a source that Urban Indians recognize and trust.
(5) Describe the resources available for the proposed project (
(6) Identify other organization(s) that will participate in the proposed project. Describe their roles and responsibilities and demonstrate their commitment to all Five Core Projects.
(7) Describe how project continuity will be maintained if there is a change in the operational environment (
(8) Provide a list of staff positions for the project and other key personnel, showing the role of each and their level of effort and qualifications for all Five Core Projects and the Unmet Needs of the 4-in-1 grantees. Key personnel include the Chief Executive Officer or Executive Director, Chief Financial Officer, Deputy Director, and Information Officer.
(9) Demonstrate successful project implementation for the level of effort budgeted for the project staff and other key staff.
(10) Include position descriptions as attachments to the application for all key personnel. Position descriptions should not exceed one page each.
(11) For individuals who are currently on staff, include a biographical sketch with their name for each individual that will be listed as the project staff and other key positions. Describe the experience of identified staff in all Five Core Projects and the Unmet Needs of the 4-in-1 grantees. Include each biographical sketch as attachments to the project proposal/application. Biographical sketches should not exceed one page per staff member. Do not include any of the following:
(a) Social security number and date and place of birth;
(b) Resumes; or
(c) Curriculum Vitae.
Describe plans to monitor activities under all Five Core Projects and the Unmet Needs of the 4-in-1 grantees, demonstrate progress towards program outcomes, and inform future program decisions over the 5-year project period. Describe how issues will be addressed during the project period, the sequence in which they will be addressed, what approaches and strategies will be used to address them, and how relevant information will be transmitted to specified target audiences and used to enhance project activities and advance the program.
(1) Describe proposed data collection efforts (performance measures and associated data) and how you will use the data to answer evaluation questions. This should include (data collection method, data source, data measurement tool, identified staff for data management, and data collection timeline).
(2) Identify key program partners and describe how they will participate in the implementation of the evaluation plan (
(3) Describe how evaluation findings will be used at the applicant level. Discuss how data collected (
(4) Discuss any barriers or challenges expected for implementing the plan, collecting data (
(1) Include a line item budget for all Five Core Projects and the Unmet Needs of the 4-in-1 grantees, including expenditures identifying reasonable and allowable costs necessary to accomplish the goals and objectives as outlined in the project narrative for the first budget year only.
(2) Provide a categorized budget for all Five Core Projects and the Unmet Needs of the 4-in-1 grantees. If it is anticipated that there will be travel costs to cover the cost of staff and UIO Leaders' attendance at national advisory committees and workgroups, the applicant should ensure the associated travel costs are included in the categorized budget for public policy.
(3) Ensure that the budget and budget narrative are aligned with the project narrative. Questions to address include: What resources are needed to successfully carry out and manage the Five Core Projects and Unmet Needs of the 4-in-1 grantees? What other resources are available from the organization? Will new staff be recruited? Will outside contractors/consultants be required?
(4) Include the total cost for any outside contractors/consultants broken down by activity within each core project.
(5) If indirect costs are claimed, indicate and apply the current negotiated rate to the budget. Include a copy of the current negotiated IDC rate agreement in the Other Attachments.
Applications must include a brief project narrative and budget (one additional page per year) addressing the developmental plans for each additional year of the project. This attachment will not count as part of the project narrative or the budget narrative.
Additional documents can be uploaded as Other Attachments in
• Work plan, logic model and/or timeline for proposed objectives.
• Position descriptions for key staff (not to exceed one page each).
• Biographical sketches for key staff (not to exceed one page each).
• Consultant or contractor proposed scope of work and letter of commitment (if applicable).
• Current Indirect Cost Rate Agreement.
• Organizational chart.
• Additional documents to support narrative (
Each application will be prescreened for eligibility and completeness as outlined in the funding announcement. Applications that meet the eligibility criteria shall be reviewed for merit by the Objective Review Committee (ORC) based on evaluation criteria. Incomplete applications and applications that are not responsive to the administrative thresholds (budget limit, project period limit) will not be referred to the ORC and will not be funded. The applicant will be notified of this determination.
Applicants must address all program requirements and provide all required documentation.
All applicants will receive an Executive Summary Statement from the IHS Office of Urban Indian Health Programs within 30 days of the conclusion of the ORC outlining the strengths and weaknesses of their application. The summary statement will be sent to the Authorizing Official identified on the face page (SF-424) of the application.
The Notice of Award (NoA) is the authorizing document for which funds are dispersed to the approved entities and reflects the amount of Federal funds awarded, the purpose of the award, the terms and conditions of the award, the effective date of the award, and the budget/project period. Each entity approved for funding must have a user account in GrantSolutions in order to retrieve the NoA. Please see the Agency Contacts list in Section VII for the systems contact information.
Approved applications not funded due to lack of available funds will be held for 1 year. If funding becomes available during the course of the year, the application may be reconsidered.
Awards issued under this announcement are subject to, and are administered in accordance with, the following regulations and policies:
A. The criteria as outlined in this program announcement.
B. Administrative Regulations for Grants:
• Uniform Administrative Requirements, Cost Principles, and Audit Requirements for HHS Awards currently in effect or implemented during the period of award, other Department regulations and policies in effect at the time of award, and applicable statutory provisions. At the time of publication, this includes 45 CFR part 75, at
• Please review all HHS regulatory provisions for Termination at 45 CFR 75.372, at
C. Grants Policy:
• HHS Grants Policy Statement, Revised January 2007, at
D. Cost Principles:
• Uniform Administrative Requirements for HHS Awards, “Cost Principles,” located at 45 CFR part 75 subpart E.
E. Audit Requirements:
• Uniform Administrative Requirements for HHS Awards, “Audit Requirements,” located at 45 CFR part 75 subpart F.
F. As of August 13, 2020, 2 CFR 200 was updated to include a prohibition on certain telecommunications and video surveillance services or equipment. This prohibition is described in 2 CFR 200.216. This will also be described in the terms and conditions of every IHS grant and cooperative agreement awarded on or after August 13, 2020.
This section applies to all recipients that request reimbursement of IDC in their application budget. In accordance with HHS Grants Policy Statement, Part II-27, the IHS requires applicants to obtain a current IDC rate agreement and submit it to the DGM prior to the DGM issuing an award. The rate agreement must be prepared in accordance with the applicable cost principles and guidance as provided by the cognizant agency or office. A current rate covers the applicable grant activities under the current award's budget period. If the current rate agreement is not on file with the DGM at the time of award, the IDC portion of the budget will be restricted. The restrictions remain in place until the current rate agreement is provided to the DGM.
Per 45 CFR 75.414(f) Indirect (F&A) costs, “any non-Federal entity (NFE) [
Electing to charge a de minimis rate of 10 percent only applies to applicants that have never received an approved negotiated indirect cost rate from HHS or another cognizant federal agency. Applicants awaiting approval of their indirect cost proposal may request the 10 percent de minimis rate. When the applicant chooses this method, costs included in the indirect cost pool must not be charged as direct costs to the grant.
Available funds are inclusive of direct and appropriate indirect costs. Approved indirect funds are awarded as part of the award amount, and no additional funds will be provided.
Generally, IDC rates for IHS grantees are negotiated with the Division of Cost Allocation at
The grantee must submit required reports consistent with the applicable deadlines. Failure to submit required reports within the time allowed may result in suspension or termination of an active grant, withholding of additional awards for the project, or other enforcement actions such as withholding of payments or converting to the reimbursement method of payment. Continued failure to submit required reports may result in the imposition of special award provisions, and/or the non-funding or non-award of other eligible projects or activities. This requirement applies whether the delinquency is attributable to the failure of the awardee organization or the individual responsible for preparation of the reports. Per DGM policy, all reports must be submitted electronically by attaching them as a “Grant Note” in GrantSolutions. Personnel responsible for submitting reports will be required to obtain a login and password for GrantSolutions. Please see the Agency Contacts list in Section VII for the systems contact information.
The reporting requirements for this program are noted below.
Program progress reports are required quarterly. The progress reports are due within 30 days after the reporting period ends (specific dates will be listed in the NoA Terms and Conditions). For each of the Five Core projects and the Unmet Needs of the 4-in-1 grantees, provide thorough narratives of performance measures, outcomes, impacts, and achievements in the Progress Report, including measureable progress towards meeting goals and objectives for the cooperative agreement, and other pertinent information as required. A final report must be submitted within 90 days of expiration of the period of performance.
Federal Cash Transaction Reports are due 30 days after the close of every calendar quarter to the Payment Management Services at
Federal Financial Reports are due 30 days after the end of each budget period, and a final report is due 90 days after the end of the Period of Performance. Grantees are responsible and accountable for reporting accurate information on all required reports: The Progress Reports, the Federal Cash Transaction Report, and the Federal Financial Report.
The following requirements were enacted in Section 3003 of the Consolidated Continuing Appropriations Act, 2013, Public Law 113-6, 127 Stat. 198, 435 (2013), and;
This award may be subject to the Transparency Act sub-award and executive compensation reporting requirements of 2 CFR part 170.
The Transparency Act requires the OMB to establish a single searchable database, accessible to the public, with information on financial assistance awards made by Federal agencies. The Transparency Act also includes a requirement for recipients of Federal grants to report information about first-tier sub-awards and executive compensation under Federal assistance awards. The IHS has implemented a Term of Award into all IHS Standard Terms and Conditions, NoAs, and funding announcements regarding the FSRS reporting requirement. This IHS Term of Award is applicable to all IHS grant and cooperative agreements issued on or after October 1, 2010, with a $25,000 sub-award obligation threshold met for any specific reporting period.
For the full IHS award term implementing this requirement and additional award applicability information, visit the DGM Grants Management website at
Should you successfully compete for an award, recipients of Federal financial assistance (FFA) from HHS must administer their programs in compliance with Federal civil rights laws that prohibit discrimination on the basis of race, color, national origin, disability, age and, in some circumstances, religion, conscience, and sex (including gender identity, sexual orientation, and pregnancy). This includes ensuring programs are accessible to persons with limited English proficiency and persons with disabilities. The HHS Office for Civil Rights provides guidance on complying with civil rights laws enforced by HHS. Please see
• Recipients of FFA must ensure that their programs are accessible to persons with limited English proficiency. For guidance on meeting your legal obligation to take reasonable steps to ensure meaningful access to your programs or activities by limited English proficiency individuals, see
• For information on your specific legal obligations for serving qualified individuals with disabilities, including reasonable modifications and making services accessible to them, see
• HHS funded health and education programs must be administered in an environment free of sexual harassment. See
• For guidance on administering your program in compliance with applicable Federal religious nondiscrimination laws and applicable Federal conscience protection and associated anti-discrimination laws, see
The IHS is required to review and consider any information about the applicant that is in the FAPIIS at
As required by 45 CFR part 75 Appendix XII of the Uniform Guidance, NFEs are required to disclose in FAPIIS any information about criminal, civil, and administrative proceedings, and/or affirm that there is no new information to provide. This applies to NFEs that receive Federal awards (currently active grants, cooperative agreements, and procurement contracts) greater than $10,000,000 for any period of time during the period of performance of an award/project.
As required by 2 CFR part 200 of the Uniform Guidance, and the HHS implementing regulations at 45 CFR part 75, the IHS must require an NFE or an applicant for a Federal award to disclose, in a timely manner, in writing to the IHS or pass-through entity all violations of Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal award.
All applicants and recipients must disclose in writing, in a timely manner, to the IHS and to the HHS Office of Inspector General all information related to violations of Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal award. 45 CFR 75.113.
Disclosures must be sent in writing to:
Failure to make required disclosures can result in any of the remedies described in 45 CFR 75.371 Remedies for noncompliance, including suspension or debarment (see 2 CFR part 180 and 2 CFR part 376).
1. Questions on the programmatic issues may be directed to: Debi Nalwood, Health System Specialist, Indian Health Service, Office of Urban Indian Health Programs, 5600 Fishers Lane, Mail Stop: 08E65D, Rockville, MD 20857, Phone: (240) 701-0882, Fax: (301) 443-8446, Email:
2. Questions on grants management and fiscal matters may be directed to: Donald Gooding, Grants Management Specialist, Indian Health Service, Division of Grants Management, 5600
3. Questions on systems matters may be directed to: Paul Gettys, Acting Director, Indian Health Service, Division of Grants Management, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857, Phone: (301) 443-2114; or the DGM main line (301) 443-5204, Email:
The Public Health Service strongly encourages all grant, cooperative agreement, and contract recipients to provide a smoke-free workplace and promote the non-use of all tobacco products. In addition, Public Law 103-227, the Pro-Children Act of 1994, prohibits smoking in certain facilities (or in some cases, any portion of the facility) in which regular or routine education, library, day care, health care, or early childhood development services are provided to children. This is consistent with the HHS mission to protect and advance the physical and mental health of the American people.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Council for Nursing Research.
The meeting will be open to the public as indicated below, with attendance limited to space available. The URL link to this meeting is
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.
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.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
Comments regarding this information collection are best assured of having their full effect if received within 30-days of the date of this publication.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Candace Maynard, Branch Chief, Cancer Information Service Branch, CISB/OCPL, 9609 Medical Center Drive, Rockville, MD 20850, or call non-toll-free number 240-276-6657 or Email your request, including your address to:
This proposed information collection was previously published in the
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 5,818 hours.
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.
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or
Comments are to be submitted on or before April 11, 2022.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-2191, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP).
The date of April 20, 2022 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
Comments are to be submitted on or before April 11, 2022.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-2190, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
Comments are to be submitted on or before April 11, 2022.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-2192, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP).
The date of April 6, 2022 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
Federal Emergency Management Agency, Department of Homeland Security.
Notice of a new system of records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security (DHS) proposes to establish a new Department of Homeland Security system of records titled, “Department of Homeland Security/Federal Emergency Management Agency (FEMA)-016 Disaster Case Management Files System of Records.” This system of records allows the Department of Homeland Security/Federal Emergency Management Agency to collect and maintain records on survivors of a Presidentially-declared major disaster with Individual Assistance (IA) authorized (as documented in the declaration published in the
Submit comments on or before February 9, 2022. This new system will be effective upon publication. Routine uses will be effective February 9, 2022.
You may submit comments, identified by docket number FEMA-2021-0031 by one of the following methods:
•
•
•
For general questions, please contact: Tammi Hines, (202) 212-5100,
Pursuant to Executive Order 12148, as amended by Executive Orders 12673 and 13286, the President of the United States has delegated to the Department of Homeland Security, including the Federal Emergency Management Agency, the authority to provide case management services, pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. 5189d. Under the Stafford Act, the Federal Emergency Management Agency (or another federal agency, non-profit organization, or qualified private organization when operating on behalf of the Federal Emergency Management Agency) may provide Disaster Case Management services directly to survivors or through financial assistance (funding through a federal award) to state (which includes the fifty states, the territories, and the District of Columbia) or local government agencies, Indian tribes, or qualified private organizations.
Disaster Case Management services include identifying and addressing disaster-caused unmet needs of survivors through identification of, and referral to, available resources. A disaster-caused unmet need is an un-resourced item, support, or assistance that has been assessed and verified as necessary for a survivor to recover from a disaster. This may include food, clothing, shelter, first aid, emotional and spiritual care, household items, home repair, or rebuilding.
In order to provide immediate to long-term Disaster Case Management during a Presidentially-declared major disaster declaration when Individual Assistance has been authorized, the Federal Emergency Management Agency may: (1) Directly provide Disaster Case Management services; (2) contract with a non-profit organization or qualified private organization who implements Disaster Case Management on behalf of the Federal Emergency Management Agency; (3) enter into an interagency agreement or mission assignment with another federal agency who implements Disaster Case Management on behalf of the Federal Emergency Management Agency; or (4) award federal funding through a grant or cooperative agreement to a state or local government, a tribe, or a qualified private organization who implements their own Disaster Case Management program.
This System of Records Notice only applies to Disaster Case Management services administered directly by the Federal Emergency Management Agency or by a non-profit organization, qualified private organization, or federal
In addition, the Federal Emergency Management Agency and the entities providing Federal Emergency Management Agency-administered Disaster Case Management may share information with federal, state, tribal, local, and voluntary entities, as well as Federal Emergency Management Agency-recognized and/or state-recognized long term recovery committees (LTRC) and their members (long term recovery groups (LTRG)) for a declared county charged through legislation or chartered with administering disaster relief or assistance programs consistent with the routine uses set forth in this system of records notice. Note that a state, local, or tribal entity providing case management services is not acting on behalf of the Federal Emergency Management Agency. However, this System of Records Notice does support sharing with state, local, and tribal entities when the Federal Emergency Management Agency is sharing information after a Federal Emergency Management Agency-administered Disaster Case Management implementation.
The records that the Federal Emergency Management Agency or another federal agency, a non-profit organization, or a qualified private organization will collect and maintain on behalf of the Federal Emergency Management Agency in order to provide Federal Emergency Management Agency-administered Disaster Case Management services may be first collected in the field from disaster survivors or may be provided by the Federal Emergency Management Agency to these entities. The implementing non-profit organization, qualified private organization, or other federal agency will enter into agreements with the Federal Emergency Management Agency to maintain the records in accordance with the National Archives and Records Administration (NARA) and Federal Emergency Management Agency-approved records polices. The Federal Emergency Management Agency is currently working with the National Archives and Records Administration to establish the appropriate records retention schedule for the records collected and covered by this System of Records.
Consistent with the Department of Homeland Security' information sharing mission, information stored in the DHS/FEMA-016 Disaster Case Management Files System of Records may be shared with other Department of Homeland Security components that have a need to know the information to carry out their national security, law enforcement, immigration, intelligence, or other homeland security functions. In addition, the Federal Emergency Management Agency may share information with appropriate federal, state, tribal, local, foreign, or international government agencies consistent with the routine uses set forth in this system of records notice.
This newly established system will be included in the Department of Homeland Security's inventory of record systems.
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which Federal Government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other information assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. Additionally, the Judicial Redress Act (JRA) provides covered persons with a statutory right to make requests for access and amendment to covered records, as defined by the Judicial Redress Act, along with judicial review for denials of such requests. In addition, the Judicial Redress Act prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act.
Below is the description of the DHS/FEMA-016 Disaster Case Management Files System of Records.
In accordance with 5 U.S.C. 552a(r), the Department of Homeland Security has provided a report of this system of records to the Office of Management and Budget and to Congress.
Department of Homeland Security (DHS)/Federal Emergency Management Agency (FEMA)-016 Disaster Case Management (DCM) Files System of Records.
Unclassified.
Records are maintained at the Federal Emergency Management Agency Headquarters in Washington, DC; Federal Emergency Management Agency Regional Offices; Joint Field Offices; Disaster Field Offices; National Processing Service Centers; Disaster Recovery Centers; and the Federal Emergency Management Agency data centers located in Bluemont, Virginia, and Clarksville, Virginia. Subject to agreement with an organization chosen by the Federal Emergency Management Agency to implement Disaster Case Management on its behalf, records may be maintained at the facilities of federal agencies with interagency agreements or mission assignments or with non-profit organizations or qualified private organizations under contract.
Division Director, Individual Assistance Division, (202) 646-3642,
Section 426 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5189d); Executive Order 12148, as amended by Executive Order 12673 and Executive Order 13286.
The purpose of this system is to enable the Federal Emergency Management Agency, and its chosen providers (which can be non-profit organizations, qualified private organizations, or federal agencies working on behalf of the Federal Emergency Management Agency), to provide services in an efficient and expeditious manner that support the overall Federal Emergency Management Agency-administered Disaster Case Management programs. Records will primarily be used to connect disaster survivors who have disaster-related
Following a Presidentially-declared major disaster when Individual Assistance is authorized, all individuals and their family and household members who register for Federal Emergency Management Agency-administered Disaster Case Management, who express interest in registering for Federal Emergency Management Agency-administered Disaster Case Management, or who may benefit from Federal Emergency Management Agency-administered Disaster Case Management, as well as employees, contractors, or other personnel providing Disaster Case Management assistance.
Disaster-related case management records, consisting of:
• Disaster number;
• Case ID numbers (
• Written consents;
• Disaster Case Management Applicant/Co-Applicant and Household Information:
○ Full name;
○ Languages spoken, written, or signed;
○ Address;
○ Location types;
○ Dates of occupation;
○ Location at time of registration;
○ Phone numbers;
○ Email addresses;
○ Disaster Case Management-related healthcare records (
○ Household size;
○ Demographic information (
○ Referral assessment and tracking information/Disaster Recovery Plan:
Referral source;
Appointment times and attendance/no show to appointment;
Reported symptoms and feelings of distress;
Behavioral health advocacy assessment;
Children and youth, clothing assessment;
Employment assessment;
Food assessment;
Furniture and appliances assessment;
Healthcare needs assessment;
Housing assessment;
Transportation assessment;
Senior services assessment;
Legal services assessment;
Assistance animals and household pets; and
Funeral assistance.
• Federal Emergency Management Agency Disaster Assistance Registration Assistance Records:
○ Homeowners insurance coverage details (including flood coverage and compliance);
○ Details on damage to real and personal property (Federal Emergency Management Agency verified);
○ Degree of total damage incurred (Federal Emergency Management Agency verified);
○ Residence type;
○ Self-reported income;
○ Housing Assistance (HA) eligibility, types, and amounts;
○ Other Needs Assistance (ONA) eligibility, types, and amounts;
○ Approved direct assistance received, including Direct Housing Assistance eligibility, types, received status;
○ Total Individuals and Households Program (IHP) amount approved, assistance sought, assistance received, source of assistance;
○ Small Business Administration (SBA) referral details, and status of access and functional needs and/or emergency needs; and
○ Self-reported disability or access and functional need, such as Personal Assistance Services.
• Business contact information collected from employees, contractors, and other personnel providing Disaster Case Management assistance (
Records may be obtained from disaster survivors (
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside the Department of Homeland Security as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including the U.S. Attorneys Offices, or other federal agencies conducting litigation or proceedings before any court, adjudicative, or administrative body, when it is relevant or necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. Department of Homeland Security or any component thereof;
2. Any employee or former employee of the Department of Homeland Security in his/her official capacity;
3. Any employee or former employee of the Department of Homeland Security in his/her individual capacity, only when the Department of Justice or the Department of Homeland Security has agreed to represent the employee; or
4. The United States or any agency thereof.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration or General Services Administration pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency or organization for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when (1) the Department of Homeland Security suspects or has confirmed that there has been a breach of the system of records; (2) the Department of Homeland Security has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the Department of Homeland Security (including its information systems, programs, and operations), the federal government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department of Homeland Security's efforts to respond
F. To another federal agency or federal entity, when the Department of Homeland Security determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, when a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment or agreement for the Department of Homeland Security, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to Department of Homeland Security officers and employees.
I. To a voluntary organization, as defined in 44 CFR 206.2(a)(27), or to a Federal Emergency Management Agency-recognized or state-recognized long term recovery committee and its members (long term recovery groups) for a declared county charged through legislation or chartered with administering disaster relief or assistance programs, that is actively involved in the recovery efforts of the disaster and that has an assistance program to address one or more unmet disaster-related needs of disaster survivors. The Federal Emergency Management Agency may disclose to such voluntary organizations lists of applicant names and contact information, as well as information necessary to provide the identified additional disaster assistance and/or address a specified unmet need.
J. To a state, tribal, or local agency for a statistical or research purpose, including the development of methods or resources to support statistical or research activities, provided that the records support Department of Homeland Security programs and activities that relate to the purpose(s) stated in this System of Records Notice, and will not be used in whole or in part in making any determination regarding an individual's rights, benefits, or privileges under federal programs, or published in any manner that identifies an individual.
K. To recipients of a long-term Disaster Case Management federal award, such as a state, tribal, or local government entity or a non-profit entity, to ensure continuity of services for each disaster survivor, if the disaster survivor still has unmet needs at the conclusion of the Federal Emergency Management Agency-administered Disaster Case Management program.
L. To the subject of a Disaster Case Management case file, the name, title, and business contact information of the employee or contractor providing Disaster Case Management assistance.
M. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information, when disclosure is necessary to preserve confidence in the integrity of the Department of Homeland Security, or when disclosure is necessary to demonstrate the accountability of the Department of Homeland Security's officers, employees, or individuals covered by the system, except to the extent the Chief Privacy Officer determines that release of the specific information in the context of a particular case would constitute a clearly unwarranted invasion of personal privacy.
The Federal Emergency Management Agency and non-profit organizations, qualified private organizations, or federal agencies supporting Federal Emergency Management Agency-administered Disaster Case Management programs store records in this system in a secure computer system electronically or on paper in secure facilities in a locked drawer behind a locked door. The records may be stored on magnetic disc, tape, and digital media.
The Federal Emergency Management Agency and non-profit organizations, qualified private organizations, or federal agencies supporting the Federal Emergency Management Agency-administered Disaster Case Management program may retrieve records by a case identification number, name, or address.
In accordance with National Archives and Records Administration Authority N1-311-86-1, Item 4C10a, records pertaining to disaster assistance will be placed in inactive storage when two years old and will be destroyed when they are six years and three months old. In accordance with National Archives and Records Administration Authority N1-311-86-1, Item 4C6a, Disaster Case Management files covering the administrative management, program, and information functions (such as mission assignments and correspondence with state and local officials) will be consolidated at appropriate regional offices upon close of the Disaster Field Office (DFO). These files will be retired to off-site storage one year after closeout and destroyed three years after closeout.
The Federal Emergency Management Agency safeguards records in this system according to applicable rules and policies, including all applicable federal and national standard automated systems security and access policies. The Federal Emergency Management Agency has imposed strict controls to minimize the risk of compromising the information that is being stored. Access to computer systems containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
Individuals seeking access to and notification of any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Chief Privacy Officer and the Federal Emergency Management Agency Freedom of Information Act (FOIA) Officer, whose contact information can be found at
When an individual is seeking records about himself or herself from this system of records or any other Departmental system of records, the individual's request must conform with the Privacy Act regulations set forth in 6 CFR part 5. The individual must first verify his/her identity, meaning that the individual must provide his/her full name, current address, and date and place of birth. The individual must sign the request, and the individual's signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. In addition, the individual should:
• Explain why he or she believes the Department would have information being requested;
• Identify which component(s) of the Department he or she believes may have the information;
• Specify when the individual believes the records would have been created; and
• Provide any other information that will help the Freedom of Information Act staff determine which the Department of Homeland Security component agency may have responsive records.
If the request is seeking records pertaining to another living individual, the request must include an authorization from the individual whose record is being requested, authorizing the release to the requester.
Without the above information, the component(s) may not be able to conduct an effective search, and the individual's request may be denied due to lack of specificity or lack of compliance with applicable regulations.
For records covered by the Privacy Act or covered Judicial Redress Act records, individuals may make a request for amendment or correction of a record of the Department about the individual by writing directly to the Department component that maintains the record, unless the record is not subject to amendment or correction. The request should identify each particular record in question, state the amendment or correction desired, and state why the individual believes that the record is not accurate, relevant, timely, or complete. The individual may submit any documentation that would be helpful. If the individual believes that the same record is in more than one system of records, the request should state that and be addressed to each component that maintains a system of records containing the record.
See “Record Access Procedures” above.
None.
None.
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of a modified system of records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security (DHS) proposes to modify, retitle, and reissue a current DHS system of records titled, “DHS/U.S. Customs and Border Protection (CBP)-025 National Frontline Recruitment Hiring System of Records.” This system of records allows DHS/CBP to collect and maintain records on individuals for the purpose of marketing information related to CBP employment, managing communication with potential applicants or individuals who attend career fairs or meetings at which CBP maintains a presence for recruitment and hiring, and for other recruitment and hiring activities for which mailing or contact lists may be created. DHS/CBP is updating this system of records notice to (1) change the name of the system of records to “CBP Recruitment and Hiring System of Records;” (2) expand the category of individuals covered by the system to include all potential applicants for employment with CBP; (3) update the authority for maintenance of this system; (4) modify the retention and disposal of records; and (5) expand the category of records to include disability status and education. Additionally, this notice includes non-substantive changes to simplify the formatting and text of the previously published notice. This modified system will be included in DHS's inventory of record systems.
Submit comments on or before February 9, 2022. New or modified routine uses will be effective February 9, 2022.
You may submit comments, identified by docket number USCBP-2021-0051 by one of the following methods:
•
•
•
For general questions, please contact: Debra L. Danisek, CBP Privacy Officer, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW, Room 3.3D, Washington, DC 20229,
CBP is modifying, retitling, and reissuing DHS/CBP-025 National Frontline Recruitment and Hiring System of Records. CBP is updating this SORN to re-name and expand the purpose of the existing SORN to “CBP Recruitment and Hiring System of Records,” eliminating the term “National Frontline” since CBP conducts recruitment and hiring outreach across all CBP positions within the United States and abroad. CBP uses records covered by this SORN to recruit and retain a world-class civilian and law enforcement workforce as one of CBP's top mission support priorities. Through recruitment outreach, market research, data analytics, advertising, technology innovations, call center support, and marketing services, CBP conducts recruitment and hiring
CBP is expanding the category of individuals contained in this SORN to include all applicants for any CBP civil service and law enforcement recruitment opportunities within the United States and abroad, instead of only providing coverage for CBP national frontline law enforcement positions. To generate a sufficient number of qualified applicants and meet aggressive recruiting goals, CBP must cultivate a large volume of interested and well-qualified applicants for all positions.
CBP is removing references to Executive Order 13767, Border Security and Immigration Enforcement Improvements, as an authority for the maintenance of the system because it was revoked by a subsequent Executive Order. CBP is now relying on 5 U.S.C. 2301(b)(1)-(2), Merit system principles; 5 U.S.C. 3101, General authority to employ; 5 U.S.C. 3301, Civil service; generally; Section 501 of the Rehabilitation Act of 1973; Americans with Disability Act (ADA) Amendments of 2008; Executive Order 14035, Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce (June 25, 2021); and Executive Order 13548, Increasing Federal Employment of Individuals with Disabilities (July 10, 2010) as the authority for maintaining the system.
CBP is modifying this SORN to update the retention and disposal of records to reflect the most recent National Archives and Records Administration (NARA)-approved records schedule which permits CBP to retain records in the system for five years.
Finally, in support of CBP's affirmative action plans, pursuant to 29 U.S.C. 791 and 29 CFR 1614.203, subparagraphs (d), we are expanding the category of records to include the disability status and education to allow individuals who are interested in CBP to voluntarily self-identify and permit CBP to direct the individual to the correct CBP recruitment office.
This SORN provides coverage for CBP's recruitment and hiring efforts. The SORN does not cover records associated with the formal hiring process once a potential applicant submits a formal application for employment. The Office of Personnel Management (OPM) is responsible for all hiring activities for employment with Federal agencies. For these activities, the relevant Office of Personnel Management SORNs continue to apply.
Consistent with DHS's information sharing mission, information stored in the DHS/CBP-025 CBP Recruitment and Hiring System of Records may be shared with other DHS components that have a need to know the information to carry out their national security, law enforcement, immigration, intelligence, or other homeland security functions. In addition, DHS/CBP may share information with appropriate federal, state, local, tribal, territorial, foreign, or international government agencies consistent with the routine uses set forth in this system of records notice.
This modified system will be included in DHS's inventory of record systems.
The Privacy Act codifies fair information practice principles in a statutory framework governing the means by which Federal Government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. Similarly, the Judicial Redress Act (JRA) provides a statutory right to covered persons to make requests for access and amendment to covered records, as defined by the Judicial Redress Act, along with judicial review for denials of such requests. In addition, the Judicial Redress Act prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act.
Below is the description of the DHS/CBP-025 CBP Recruitment and Hiring System of Records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
Department of Homeland Security (DHS)/U.S. Customs and Border Protection (CBP)-025 CBP Recruitment and Hiring System of Records.
Unclassified.
DHS/CBP maintains records at its Headquarters at 1300 Pennsylvania Avenue NW, Washington, DC 20229, and in field offices, and contractor-owned and operated facilities. DHS/CBP stores records in this system electronically or on paper in secure facilities in a locked drawer behind a locked door. The records may be stored on magnetic disc, tape, and digital media and will be maintained within a CBP web portal.
Executive Assistant Commissioner, Enterprise Services, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW, Washington, DC 20029.
5 U.S.C. 302, Delegation of authority; 5 U.S.C. 2301(b)(1)-(2), Merit system principles; 5 U.S.C. 3101, General authority to employ; 5 U.S.C. 3301, Civil service; generally; Section 501 of the Rehabilitation Act of 1973; Americans with Disability Act Amendments of 2008; Executive Order 14035, Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce (June 25, 2021); Executive Order 13548, Increasing Federal Employment of Individuals with Disabilities (July 10, 2010).
The purpose of this system is to conduct recruitment, marketing, outreach, and advertising to potential candidates for all CBP positions located
Potential applicants or individuals interested in CBP employment opportunities covered by the system include:
1. Individuals who express interest in any CBP position and voluntarily provide information to CBP.
2. Individuals who withdraw from the hiring process for CBP positions.
3. Individuals who receive targeted marketing information from CBP to apply for a CBP position based on commercially available mailing lists (
CBP maintains various types of information related to recruiting and outreach records for CBP positions located in the United States and abroad, including:
• First and last name;
• Age or date of birth;
• Disability status;
• Gender;
• Phone numbers;
• Email addresses;
• Mailing addresses, including ZIP code;
• Military status (
• Other biographic and contact information voluntarily provided to DHS by individuals covered by this system of records solely for recruitment and hiring activities;
• Computer-generated identifier or case number when created in order to retrieve information; and
• Status of opt-in/consent to receive targeted marketing and advertising based on the individual's expressed area of interest in CBP employment opportunities;
• Responses to pre-screening questions, including information related to: (1) An individual's possession of, or eligibility to, carry a valid driver's license (yes or no response only); (2) any reason why the individual may not be able to carry a firearm (yes or no response only); (3) interest level in CBP employment; (4) U.S. residency information (limited to length of residency only); (5) education related questions; and (6) any additional information in support of preliminary hiring activities.
CBP may obtain records about potential applicants in this system either directly from the individual, from a third party with whom the individual has granted permission to share his or her information with potential employers, or from community, civic, educational institutions, military, and other sources. CBP will obtain records about withdrawn applicants from existing internal CBP human resources systems.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including the U.S. Attorneys' Offices, or other federal agencies conducting litigation or proceedings before any court, adjudicative, or administrative body, when it is relevant or necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee or former employee of DHS in his/her official capacity;
3. Any employee or former employee of DHS in his/her individual capacity, only when the Department of Justice or DHS has agreed to represent the employee; or
4. The United States or any agency thereof.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration or General Services Administration pursuant to records management inspections being conducted under the authority of 44 U.S.C. secs. 2904 and 2906.
D. To an agency or organization for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when (1) DHS suspects or has confirmed that there has been a breach of the system of records; (2) DHS has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, DHS (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
F. To another federal agency or federal entity, when DHS determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach; or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, when a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
DHS/CBP stores records in this system electronically or on paper in secure facilities in a locked drawer behind a locked door. The records may be stored on magnetic disc, tape, and digital media.
DHS/CBP retrieves records by an individual's name.
In accordance with General Records Schedule (GRS) 2.1, Item 180, DHS/CBP will delete records when superseded, obsolete, or when an individual submits a request to the agency to remove the records. In general, and unless it receives a request for removal, CBP will maintain these records for five years, after which point, they will be considered obsolete and no longer necessary for CBP operations.
DHS/CBP safeguards records in this system according to applicable rules and policies, including all applicable DHS automated systems security and access policies. DHS/CBP has imposed strict controls to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
Individuals seeking access to and notification of any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Chief Privacy Officer and DHS/CBP's Freedom of Information Act Officer, whose contact information can be found at
When an individual is seeking records about himself or herself from this system of records or any other Departmental system of records, the individual's request must conform with the Privacy Act regulations set forth in 6 CFR part 5. The individual must first verify his/her identity, meaning that the individual must provide his/her full name, current address, and date and place of birth. The individual must sign the request, and the individual's signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. In addition, the individual should:
• Explain why he or she believes the Department would have information being requested;
• Identify which component(s) of the Department he or she believes may have the information;
• Specify when the individual believes the records would have been created; and
• Provide any other information that will help the DHS staff determine which DHS component agency may have responsive records;
If the request is seeking records pertaining to another living individual, the request must include an authorization from the individual whose record is being requested, authorizing the release to the requester.
Without the above information, the component(s) may not be able to conduct an effective search, and the individual's request may be denied due to lack of specificity or lack of compliance with applicable regulations.
For records covered by the Privacy Act or covered Judicial Redress Act records, see “Record Access Procedures” above.
See “Record Access Procedures” above.
None.
83 FR 27014 (June 11, 2018).
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Development (HUD).
Notice of Housing Counseling Federal Advisory Committee public meeting.
This gives notice of a Housing Counseling Federal Advisory Committee (HCFAC) meeting and sets forth the proposed agenda. The HCFAC meeting will be held on Wednesday, January 19, 2022. The meeting is open to the public and is accessible to individuals with disabilities. This notice is being published less than 15 days prior to the meeting date due to unforeseen administrative delays.
The virtual meeting will be held on Wednesday, January 19, 2022, starting at 12:30 p.m. Eastern Standard Time (EST) via teleconference.
Virginia F. Holman, Housing Program Specialist, Office of Housing Counseling, U.S. Department of Housing and Urban Development, 600 East Broad Street, Richmond VA 23219; telephone number 540-894-7790 (this is not a toll-free number); email
HUD is convening the virtual meeting of the HCFAC on Wednesday, January 19, 2022, from 12:30 p.m. to 4:00 p.m. EST. The meeting will be held via teleconference. This meeting notice is provided in accordance with the Federal Advisory Committee Act, 5. U.S.C. App. 10(a)(2).
The public is invited to attend this one-day virtual meeting. Advance registration is required to participate. To register, please send an email requesting registration to
After completing the registration process above, individuals will receive details with the meeting link and passcode needed to attend. Individuals with speech or hearing impairments may follow the discussion by first calling the toll-free Federal Relay Service (FRS): (800) 977-8339 and providing the FRS operator with the conference call number that will be provided in the registration confirmation.
With advance registration, members of the public will have an opportunity to provide oral and written comments relative to agenda topics for the HCFAC's consideration. To provide oral comments, please be sure to indicate your desire to do so in your registration email no later than January 10, 2022. The total amount for such comments will be limited to ensure pertinent HCFAC business is completed. Further, the amount of time allotted to each individual commenter will be limited to two minutes and will be allocated on a first-come first-served basis by HUD. Written comments must be provided no later than January 10, 2022, to
Records and documents discussed during the meeting as well as other information about the work of the HCFAC, will be available for public viewing as they become available at:
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 February 9, 2022.
Send your comments on the information collection request (ICR) within 30 days of publication of this notice to
Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act of 1995 (PRA, 44 U.S.C. 3501
On May 20, 2021, we published in the
As part of our continuing effort to reduce paperwork and respondent burdens, we are again soliciting comments from the public and other Federal agencies on the proposed ICR that is described below. 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. 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
The Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) (68 FR 15100, March 28, 2003) encourages the development of conservation agreements or plans and provides the standard that an individual conservation effort must meet in order for us to consider whether it is likely to make a difference in a species' status. PECE applies to formalized conservation efforts that have not been implemented or have been implemented but have not yet demonstrated if they are effective at the time of a listing decision.
Under PECE, formalized conservation efforts are defined as conservation efforts (specific actions, activities, or programs designed to eliminate or reduce threats or otherwise improve the status of a species) identified in a conservation agreement, conservation plan, management plan, or similar document. To assist us in evaluating whether a formalized conservation effort meets the standard under PECE, we collect information such as conservation plans, monitoring results, and progress reports. The development of any agreement or plan is voluntary. The PECE is posted on our Candidate Conservation website at
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
National Park Service, Interior.
Notice.
Beloit College, Logan Museum of Anthropology in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to Beloit College, Logan Museum of Anthropology. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian Tribes, or Native
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Beloit College, Logan Museum of Anthropology at the address in this notice by February 9, 2022.
Nicolette B. Meister, Director, Logan Museum of Anthropology, Beloit College, Beloit, WI 53511, telephone (608) 363-2305, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of Beloit College, Logan Museum of Anthropology, Beloit, WI, that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
Sometime between 1875 and 1889, 26 cultural items were removed from San Nicolas Island in Ventura County, CA. The cultural items were removed by Reverend Stephen Bowers. Bowers made multiple collecting trips to San Nicolas Island, during which he removed thousands of cultural items. He later sold those items to museums and collectors. Between 1880 and 1881, Reverend Bowers owned two newspapers in Wisconsin, one in Clinton and one in Beloit, and they provide the context for his sale of cultural items to the Logan Museum. The 26 unassociated funerary objects are 13 modified shells (965.01; 965.02; 965.03; 965.04; 965.05; 965.06; 965.07; 965.08; 965.09; 965.10; 965.11; 966.01; 966.02), six unmodified shells (1008.01; 1008.02; 1008.03; 1009.01; M.05.0085), two modified shells or bone (907), and five stone pestles (18204; 18205; 18206; 18207; 18208). One pestle (18208) is currently missing from museum collections, but upon being located, it will be transferred with the other cultural items listed in this notice.
Based on archeological information, a relationship of shared group identity may reasonably be traced between the following Indian Tribes and the people who occupied San Nicolas for at least 10,000 years: La Jolla Band of Luiseno Indians, California [previously listed as La Jolla Band of Luiseno Mission Indians of the La Jolla Reservation]; Pala Band of Mission Indians [previously listed as Pala Band of Luiseno Mission Indians of the Pala Reservation, California]; Pauma Band of Luiseno Mission Indians of the Pauma & Yuima Reservation, California; Pechanga Band of Luiseno Mission Indians of the Pechanga Reservation, California; Rincon Band of Luiseno Mission Indians of Rincon Reservation, California; Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California; and the Soboba Band of Luiseno Indians, California. Hereafter, these Indian Tribes are referred to as “The Tribes.”
Officials of Beloit College, Logan Museum of Anthropology have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the 26 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and The Tribes.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Nicolette B. Meister, Logan Museum of Anthropology, Beloit College, 700 College Street, Beloit, WI 53511, telephone (608) 363-2305, email
Beloit College, Logan Museum of Anthropology is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
History Nebraska, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of sacred objects. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to History Nebraska. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to History Nebraska at the address in this notice by February 9, 2022.
Trisha Nelson, History Nebraska, 1500 R Street, Lincoln, NE 68508-1651, telephone (402) 471-4760, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of History Nebraska, Lincoln, NE, that meet the definition of sacred objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d) (3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native
In 1939, a large collection of items known as the Zimmerman collection was donated to History Nebraska. Among the items are the three sacred objects listed in this notice. Initially, this collection was loaned by Mary R. Zimmerman to History Nebraska in 1934; it became a donation upon her death in 1939. From 1898 to 1928, Dr. Charles F. Zimmerman and his wife Mary “Mollie” Zimmerman operated a drug store in Naper, Nebraska. Mr. Zimmerman was also employed by the United States Government Indian Medical Service. Museum records indicate that Charles amassed a collection of Native American objects through purchases and gifts. The three sacred objects listed in this notice are one eagle feather hand fan (object id 4364-278), one two-piece pipestone pipe [object id 4364-273-(1-2)], and one pair of beaded leggings [object id 4364-276-(1-2)].
According to the Museum's donation records, the three items came from High Eagle, and is presumed to be Joseph High Eagle, the Oglala Sioux warrior, medicine man, and cousin of Crazy Horse. On October 14, 2021, Lilla Pearl Asmund requested the repatriation of the three items. She presented information to show that the items are sacred objects and that they had been owned by her great-grandfather, Joseph High Eagle. During consultation between History Nebraska and the Oglala Sioux Tribe, the Tribe corroborated the information provided to the Museum by Lilla Pearl Asmund.
Officials of History Nebraska have determined that:
• Pursuant to 25 U.S.C. 3001(3)(C), the three cultural items described above are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents; and
• Pursuant to 25 U.S.C. 3005(a)(5)(A) and 43 CFR 10.2(b)(1), Lilla Pearl Asmund is the direct lineal descendant of the individual who owned the sacred objects.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Trisha Nelson, History Nebraska, 1500 R Street, Lincoln, NE 68508-1651, telephone (402) 471-4760, email
History Nebraska is responsible for notifying Lilla Pearl Asmund and the Oglala Sioux Tribe [previously listed as Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota] that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior (Department) is establishing and seeking nominations for the Advisory Committee on Reconciliation in Place Names (Committee). The Committee will identify geographic names and Federal land unit names that are considered derogatory and solicit proposals on replacement names.
Nominations for the Committee must be submitted by February 24, 2022.
Nominations should be emailed to Joshua Winchell, Office of Policy, National Park Service, at
Joshua Winchell, telephone number 202-641-4467, or email
The Committee is established under the authority of the Secretary and regulated by the Federal Advisory Committee Act (FACA), as amended (5 U.S.C. appendix 2). The Committee's duties are strictly advisory and consist of providing recommendations for implementation of Secretary's Order No. 3405—Addressing Derogatory Geographic Names.
Duties shall include, but are not limited to (1) recommending to the Secretary changes to existing Federal land unit names and additional terms that may be considered derogatory and identifying resources required to implement any resulting name changes; (2) recommending to the Secretary a process to solicit, encourage, and assist proposals to change derogatory geographic names; and (3) soliciting proposals to replace derogatory geographic features and Federal land unit names from Indian Tribes, appropriate State and local governments, affected Federal agencies and departments, and members of the public.
The term “Federal land unit” includes (1) National Forest System land; (2) a unit of the National Park System; (3) a component of the National Wilderness Preservation System; (4) any part of the National Landscape Conservation System; and (5) a unit of the National Wildlife Refuge System.
The Committee will meet approximately two to four times per year. The Committee will consist of no more than 17 discretionary members to be appointed by the Secretary of whom, to the extent practicable:
1. At least four will be members of an Indian Tribe;
2. At least one will represent a Tribal organization;
3. At least one will represent a Native Hawaiian organization;
4. At least four will have backgrounds in civil rights or race relations;
5. At least four will have expertise in anthropology, cultural studies, geography, or history; and
6. At least three will represent the general public.
Appointments will be on a staggered term basis for a term not to exceed 3 years.
Nominations must include a resume providing an adequate description of the nominee's qualifications, including information that would enable the Department to make an informed decision regarding meeting the membership requirements of the Committee and permit the Department to contact a potential member.
Members who are appointed to the Committee in their official capacity as Federal employees are subject to applicable Federal ethics statutes and regulations, to include applicable exceptions and exemptions.
Members of the Committee appointed as special Government employees (SGEs) are subject to applicable Federal ethics statutes and regulations, to include applicable exceptions and exemptions. Additionally, SGE
Non-Federal members of the Committee and subcommittees appointed as representatives are not subject to Federal ethics statutes and regulations. However, no non-Federal Committee or subcommittee members will participate in any Committee or subcommittee deliberations or votes relating to a specific party matter before the Department or its bureaus and offices including a lease, license, permit, contract, grant, claim, agreement, or litigation, in which the member or the entity the member represents has a direct financial interest.
Members serve without compensation. However, while away from their homes or regular places of business in the performance of services for the Committee as approved by the Designated Federal Officer, members may be allowed travel expenses, including per diem in lieu of subsistence.
In addition, the Committee will have ex-officio members including, but not limited to a Department of the Interior representative; a Department of Agriculture representative; a Department of Defense representative; and a Department of Commerce representative.
National Park Service, Interior.
Notice.
The State University at Buffalo, Department of Anthropology has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any present-day Indian Tribes or Native Hawaiian organizations. Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the State University at Buffalo, Department of Anthropology. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Indian Tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the State University at Buffalo, Department of Anthropology at the address in this notice by February 9, 2022.
Douglas J. Perrelli, Ph.D., RPA, State University at Buffalo Department of Anthropology, 380 Academic Center, Ellicott Complex, Buffalo, NY 14261-0026, telephone (716) 645-2297, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the State University at Buffalo, Department of Anthropology, Buffalo, NY. The human remains and associated funerary objects were removed from the Village of Youngstown, Niagara County, NY.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the University at Buffalo, Department of Anthropology professional staff in consultation with representatives of the Seneca Nation of Indians [previously listed as Seneca Nation of New York].
From February through October of 1997, human remains representing, at minimum, 13 individuals were removed from burials located at the intersection of Jackson Street and Lower River Road/Main Street in Youngstown, Niagara County, NY. Following excavation, the human remains were accessioned into the Marian E. White Anthropology Museum at the State University at Buffalo, Department of Anthropology. The condition of the human remains varies as a result of their having been uncovered by heavy machinery. No known individuals were identified. The 100 associated funerary objects are 85 nail fragments, 10 chert flakes, one bullet, one shell button, two brass pins, and one glass fragment.
Officials of the State University at Buffalo, Department of Anthropology have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on the location and condition of the burials and the nature of the skeletal remains and dentition.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 13
• Pursuant to 25 U.S.C. 3001(3)(A), the 100 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian Tribe.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Seneca Nation of Indians [previously listed as Seneca Nation of New York].
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary objects may be to the Seneca Nation of Indians [previously listed as Seneca Nation of New York].
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Douglas J. Perrelli, Ph.D., RPA, University at Buffalo Department of Anthropology, 380 Academic Center, Ellicott Complex, Buffalo NY 14261-0026, telephone (716) 645-2297, email
The State University at Buffalo, Department of Anthropology is responsible for notifying the Seneca Nation of Indians [previously listed as Seneca Nation of New York] that this notice has been published.
National Park Service, Interior.
Notice; correction.
The Fowler Museum at the University of California Los Angeles (Fowler Museum at UCLA) has corrected an inventory of human remains and associated funerary objects, published in a Notice of Inventory Completion in the
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Fowler Museum at UCLA at the address in this notice by February 9, 2022.
Wendy G Teeter, Ph.D., Fowler Museum at UCLA, Box 951549, Los Angeles, CA 90095-1549, telephone (310) 825-1864, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the correction of an inventory of human remains and associated funerary objects under the control of the Fowler Museum at the University of California Los Angeles, Los Angeles, CA. The human remains and associated funerary objects were removed from San Luis Obispo County, CA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
This notice corrects the number of associated funerary objects published in a Notice of Inventory Completion in the
In the
Accession 290 includes five associated funerary objects that are two flakes, one core, and two scrapers.
In the
Pursuant to 25 U.S.C. 3001(3)(A), the 83 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Wendy G Teeter, Ph.D., Fowler Museum at UCLA, Box 951549, Los Angeles, CA 90095-1549, telephone (310) 825-1864, email
The Fowler Museum at the University of California Los Angeles is responsible for notifying the Indian Tribes and
National Park Service, Interior.
Notice.
The Berkshire Museum, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of objects of cultural patrimony. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the Berkshire Museum. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the Berkshire Museum at the address in this notice by February 9, 2022.
Jason Vivori, Berkshire Museum, 39 South Street, Pittsfield, MA 01201, telephone (413) 443-7171 Ext. 341, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the Berkshire Museum, Pittsfield, MA, that meet the definition of objects of cultural patrimony under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
In the mid-18th century, two cultural items were removed from Whahktukuk in Berkshire County, MA. According to museum documentation, both items were donated to the Berkshire Museum in 1958 by Allen Peck of Pittsfield. According to the donor, both items had been given to Israel Dickinson of Pittsfield (1736-1777), his great-great grandfather, by Sachem John Konkapot of Stockbridge (ca. 1690-1765), a significant leader in the Stockbridge Munsee Community, Wisconsin. The two objects of cultural patrimony are one wampum pouch and one pair of moccasins.
In consultation with the Stockbridge Munsee Community, Wisconsin, the Berkshire Museum has determined that the date and provenience of the cultural items reasonably accord with the lives of both John Konkapot and Israel Dickinson. Consequently, the information in the possession of the Berkshire Museum shows that Sachem Konkapot was the caretaker of the pouch and moccasins prior to the donor's great-great grandfather, Israel Dickinson, coming into possession of them.
The wampum pouch has ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual, and cannot be alienated, appropriated, or conveyed by an individual regardless of whether or not the individual is a member of the Indian Tribe. Written histories establish the wampum pouch as a continuing culturally significant artifact since at least the eighteenth century. In
The pair of moccasins also satisfy NAGPRA's definition of cultural patrimony. They are significant for having belonged to Stockbridge-Munsee Sachem John Konkapot.
Officials of the Berkshire Museum have determined that:
• Pursuant to 25 U.S.C. 3001(3)(D), the two cultural items described above have ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the cultural patrimony and the Stockbridge Munsee Community, Wisconsin.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Jason Vivori, Berkshire Museum, 39 South Street, Pittsfield, MA 01201, telephone (413) 443-7171 Ext. 341, email
The Berkshire Museum is responsible for notifying the Stockbridge Munsee Community, Wisconsin that this notice has been published.
On December 29, 2021, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of South Carolina, in the lawsuit entitled
The United States filed this lawsuit under the Clean Air Act. The United States' complaint seeks injunctive relief related to emissions of Hydrogen Sulfide from defendant's paper mill in Catawba, South Carolina. The consent decree requires the defendant to perform injunctive relief to abate hydrogen sulfide emissions, and to pay a $1.1 million civil penalty.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined at and downloaded from this Justice Department website:
Please enclose a check or money order for $8.75 (25 cents per page reproduction cost) payable to the United States Treasury.
On January 3, 2022, the Department of Justice lodged a proposed stipulation and settlement agreement with the United States District Court for the Eastern District of New York in the lawsuit entitled
The United States filed this lawsuit to seek civil penalties and injunctive relief for violations of the Toxic Substances Control Act, 15 U.S.C. 2682(c), 2686(b) and 2687, (“TSCA”) and the Renovation, Repair and Painting Rule, 40 CFR part 745, subpart E (“RRP Rule”). The alleged violations concern the alleged failure of SYG Realties, L.L.C., All Year Management NY, Inc., and All Year Management, L.L.C. (“defendants”), business entities that renovated residential units, to comply with TSCA and the RRP Rule at five locations in Brooklyn, New York. The Complaint alleges that defendants,
The Stipulation and Settlement Agreement requires defendants to implement injunctive relief that includes advising EPA of any intent to engage in any renovation work governed by the RRP Rule in the future and then to negotiate a compliance plan with EPA that is enforceable through the Stipulation and Settlement Agreement.
The publication of this notice opens a period for public comment on the proposed Stipulation and Settlement Agreement. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Stipulation and Settlement Agreement may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $1.75 (25 cents per page reproduction cost) payable to the United States Treasury.
Employee Benefits Security Administration, Labor.
Notice of proposed exemption.
This document provides notice of the pendency before the Department of Labor (the Department) of a proposed individual exemption from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA) and/or the Internal Revenue Code of
If granted, this proposed exemption will be in effect for one year beginning on the date of conviction of Credit Suisse Securities (Europe) Limited in Case Number 1:21-cr-00520-WFK.
Written comments and requests for a public hearing on the proposed exemption should be submitted to the Department by February 22, 2022.
All written comments and requests for a hearing should be sent to the Employee Benefits Security Administration (EBSA), Office of Exemption Determinations, Attention: Application No. D-12065 via email to
Erin Scott Hesse of the Department at (202) 693-8546. (This is not a toll-free number.)
In light of the current circumstances surrounding the COVID-19 pandemic caused by the novel coronavirus which may result in disruption to the receipt of comments by U.S. Mail or hand delivery/courier, persons are encouraged to submit all comments electronically and not to follow with paper copies. Comments should state the nature of the person's interest in the proposed exemption and the manner in which the person would be adversely affected by the exemption, if granted. Any person who may be adversely affected by an exemption can request a hearing on the exemption. A request for a hearing must state: (1) The name, address, telephone number, and email address of the person making the request; (2) the nature of the person's interest in the exemption and the manner in which the person would be adversely affected by the exemption; and (3) a statement of the issues to be addressed and a general description of the evidence to be presented at the hearing. The Department will grant a request for a hearing made in accordance with the requirements above where a hearing is necessary to fully explore material factual issues identified by the person requesting the hearing. A notice of such hearing shall be published by the Department in the
The Department is considering granting an exemption under the authority of Section 408(a) of the Employee Retirement Income Security Act of 1974, as amended (ERISA), and Section 4975(c)(2) of the Internal Revenue Code of 1986, as amended (the Code), and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (76 FR 46637, 66644, October 27, 2011).
This proposed exemption will be effective for a one-year period beginning on the date a judgment of conviction against CSSEL (the CSSEL Conviction) is entered in the United States District Court for the Eastern District of New York in case number 1:21-cr-00520-WFK, provided that the conditions set out in Section III of the Proposed Exemption are satisfied.
1. CSG is a publicly-traded corporation headquartered in Zurich, Switzerland. CSG and its affiliates operate in about 50 countries and
2. CSG owns a 100% interest in Credit Suisse AG (CSAG). CSAG operates as a bank, in Switzerland and abroad. Currently, two Credit Suisse asset management affiliates, Credit Suisse Asset Management, LLC (CSAM LLC) and Credit Suisse Asset Management Limited (CSAM Ltd.) (together, the CS Affiliated QPAMs), manage the assets of ERISA-covered plans and IRAs (together, Covered Plans) on a discretionary basis. The CS Affiliated QPAMs also advise or sub-advise pooled funds. These affiliates routinely rely upon PTE 84-14 to provide relief for party in interest investment transactions.
3. CSSEL is headquartered in London, United Kingdom and is indirectly a wholly-owned subsidiary of CSG. CSSEL provides a broad range of financial products and services including global securities sales, trading and execution, prime brokerage and capital markets, with an active securities branch in Korea.
4. The Applicant represents that the investment management businesses that operate out of the CS Affiliated QPAMs are separate businesses from CSAG and CSSEL. The CS Affiliated QPAMs have dedicated systems, management, risk and compliance officers and/or legal coverage. The management of plan assets is conducted separately from: (a) The non-investment management business activities of the Applicant, including the investment banking businesses; and (b) the conduct that is the subject of the CSSEL Plea Agreement (described below). The policies and procedures create information barriers designed to prevent employees of the CS Affiliated QPAMs from gaining access to inside information that an affiliate may have acquired or developed in connection with the investment banking, treasury services or other investor services business activities. These policies and procedures apply to employees, officers, and directors of the CS Affiliated QPAMs. The Applicant maintains an employee hotline for employees to express any concerns of wrongdoing anonymously.
5. CSAG also owns a five percent or more interest in certain other entities that may provide investment management services to plans but that are not affiliates of CSAG (the CS Related QPAMs). CSSEL, however, currently has no subsidiaries in which it has a five percent or more interest but which are not commonly controlled with CSAG and that are QPAMs within the meaning of PTE 2019-07.
6. The CS Affiliated QPAMs' clients include plans subject to Part IV of Title I of ERISA and plans subject to Code section 4975, with respect to which the CS Affiliated QPAMs rely on PTE 84-14, or with respect to which the CS Affiliated QPAMs (or a CSG affiliate) have expressly represented that the managers qualify as a QPAM or rely on PTE 84-14.
7. The rules set forth in ERISA section 406 and Code section 4975(c)(1) proscribe certain “prohibited transactions” between plans and related parties with respect to those plans. Under ERISA, such parties are known as “parties in interest.” ERISA section 3(14) defines parties in interest with respect to a plan to include, among others, the plan fiduciary, a sponsoring employer of the plan, a union whose members are covered by the plan, service providers with respect to the plan, and certain of their affiliates.
8. The prohibited transaction provisions under ERISA section 406(a) and Code Section 4975(c)(1) prohibit, in relevant part, sales, leases, loans or the provision of services between a party in interest and a plan (or an entity whose assets are deemed to constitute the assets of a plan), as well as the use of plan assets by or for the benefit of, or a transfer of plan assets to, a party in interest.
9. PTE 84-14 reflects the Department's conclusion that it could provide broad relief from the prohibited transaction provisions of ERISA section 406(a) and Code section 4975(c)(1), in the circumstances set forth in that exemption, only if the commitments and the investments of plan assets, and the negotiations leading thereto, are the sole responsibility of an independent discretionary manager.
10. Section I(g) of PTE 84-14 prevents an entity that may otherwise meet the definition of a QPAM from utilizing the exemptive relief provided by PTE 84-14, for itself and its client plans, if that entity or an “affiliate”
11. The inclusion of Section I(g) in PTE 84-14 is, in part, based on an expectation that QPAMs will maintain a high standard of integrity. This expectation extends not only to the QPAM itself but also to those who may be in a position to influence the policies of the QPAM.
12. On May 19, 2014, the Tax Division of the United States Department of Justice (DOJ) and the U.S. Attorney's Office for the Eastern District of Virginia filed a one-count criminal information (the CSAG Information) in the District Court for the Eastern District of Virginia (the Virginia District Court) charging CSAG with a conspiracy to violate Code section 7206(2) in violation of Title 18,
13. According to the Statement of Facts filed in the criminal case (the CSAG Statement of Facts), for decades prior to and through approximately 2009, CSAG operated an illegal cross-border banking business that knowingly and willfully aided and assisted thousands of U.S. clients in opening and maintaining undeclared accounts concealing their offshore assets and income from the IRS. Private bankers employed by CSAG (referred to as Relationship Managers or RMs) served as the primary contact for U.S. clients with undeclared accounts at CSAG. CSAG used a variety of means to assist U.S. clients in concealing their undeclared accounts, including by: Assisting clients in using sham entities as nominee beneficial owners of the undeclared accounts; soliciting IRS forms that falsely stated under penalty of perjury that the sham entities beneficially owned the assets in the accounts; failing to maintain records in the United States related to the accounts; destroying account records sent to the United States for client review; using Credit Suisse
14. CSAG made a number of ineffectual attempts to consolidate these U.S. clients' accounts in CSAG business entities that complied with U.S. law. For instance, starting in or about 2009, CSAG engaged in a flawed process of verifying tax compliance of U.S. accounts in order to allow these accounts to remain at CSAG. In December 2010, the Tax Division of the U.S. Department of Justice (DOJ) informed Credit Suisse AG that it had begun a criminal investigation of CSAG that had uncovered evidence of tax law violations. Although CSAG had either transferred or terminated the majority of its relationships with these U.S. clients by approximately 2010, CSAG continued to identify U.S. customer accounts for closure until on or about 2013.
15. On May 19, 2014, pursuant to a plea agreement (the CSAG Plea Agreement), CSAG entered a plea of guilty for assisting U.S. citizens in federal income tax evasion. The conviction (the CSAG Conviction) occurred on November 21, 2014.
16. In connection with the CSAG Conviction, the Department first granted PTE 2014-11,
17. On October 19, 2021, 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), filed a criminal information (the CSSEL Information) in the District Court for the Eastern District of New York (the New York District Court) charging CSSEL with one count of conspiracy to commit wire fraud in violation of 18 U.S.C. 1349.
18. CSSEL agreed to resolve the action through a plea agreement presented to the New York District Court on October 19, 2021 (the CSSEL Plea Agreement). Under the CSSEL Plea Agreement, CSSEL agreed to enter a plea of guilty to the charge set out in the CSSEL Information (the CSSEL Plea). In addition, CSSEL will make an admission of guilt to the District Court. The Applicant expects that the District Court will enter a judgment against CSSEL that will require remedies that are materially the same as those set forth in the CSSEL Plea Agreement. On October 19, 2021, in connection with the CSSEL Plea, the ultimate parent of CSSEL, CSG, entered into a Deferred Prosecution Agreement (the DPA) with the Criminal Division, Money Laundering and Asset Recovery Section and Fraud Section of the DOJ and the United States Attorney's Office for the Eastern District of New York.
19. For purposes of Section I(g) of PTE 84-14, the date CSSEL is sentenced will be the conviction date (the CSSEL Conviction Date). As of that date, absent this exemption, the CS Affiliated and Related QPAMs will no longer be able to rely on the relief provided by PTE 84-14 as of the CSSEL Conviction Date. The CSSEL Conviction will also violate PTE 2019-07 and therefore, absent this exemption, the CS Affiliated and Related QPAMs will no longer be able to rely on the relief provided by either PTE 84-14 or PTE 2019-07 as of the CSSEL Conviction Date.
20. According to the Statement of Facts (the CSSEL Statement of Facts)
21. CSSEL, through its employees, conspired to use U.S. wires and the U.S. financial system to defraud U.S. and international investors. Credit Suisse
22. CSSEL, through Surjan Singh (Singh), who left Credit Suisse in 2017, and Andrew Pearse (Pearse) and Detelina Subeva (Subeva), who both left Credit Suisse in 2013, among other things, conspired to defraud investors and potential investors in the EMATUM Securities by concealing and misrepresenting the fact that approximately $50 million in kickbacks were paid to Pearse, Singh, and Subeva from the loan proceeds of the EMATUM LPN transaction. Jean Boustani, an agent of Privinvest,
23. Credit Suisse also arranged the EMATUM Exchange, whereby, in 2015, when EMATUM began encountering problems servicing the EMATUM loans, Credit Suisse arranged for the LPNs to be exchanged for Mozambique-issued Eurobonds. According to the Statement of Facts, in seeking investors' consent to the EMATUM Exchange, CSSEL prepared documents about the EMATUM Exchange that were sent to investors and included false and misleading statements regarding the use of proceeds of the original EMATUM loan and omitted certain other facts concerning the EMATUM Exchange. Credit Suisse ignored or only nominally addressed a number of red flags in connection with these transactions.
24. On or about August 30, 2013, Credit Suisse agreed to move forward with the EMATUM transaction. In addition to Credit Risk Management, the European Investment Banking Committee, Reputational Risk, and the Compliance and Anti-Money Laundering functions considered the transaction, and agreed to allow the EMATUM transaction to go forward. The CSSEL Statement of Facts indicates that after Credit Suisse transferred the funds raised to finance EMATUM to Privinvest, Privinvest secretly paid millions of dollars to three of the signatories on the EMATUM deal—Singh, Do Rosario, and Chang.
25. Credit Suisse approved the EMATUM loan notwithstanding the fact that its earlier due diligence process for ProIndicus had identified significant risks of bribery and the size of the project had expanded greatly without apparent justification, and Credit Suisse, through Pearse, Singh, and Subeva, knew that Privinvest had paid kickbacks to Pearse in connection with the ProIndicus transaction, and would pay further kickbacks to Pearse and Singh in connection with the EMATUM loan.
26. Credit Suisse sent potential investors materials that included the EMATUM loan agreement and marketing materials such as the offering circular (the LPN Investor Documents), notwithstanding the fact that the LPN Investor Documents represented that the loan proceeds would be used exclusively to fund the EMATUM project, and that none of the proceeds would be used to pay bribes or kickbacks. For example, (a) Pearse and Singh knew that they would receive millions of dollars in illegal kickback payments from Privinvest in connection with the EMATUM loan while employed by Credit Suisse; (b) Firm 1 had expressly warned Credit Suisse about Privinvest and Privinvest Co-Conspirator 1's history of corruption and bribery; and (c) a senior Credit Suisse executive had previously said “no” to Pearse to the combination of Privinvest Co-Conspirator 1 and Mozambique in November 2012.
27. Despite the use of proceeds concerns raised by the significant valuation shortfall and other previously identified red flags, which underscored the risk that the EMATUM proceeds had been used for corruption and bribery, Credit Suisse approved the EMATUM Exchange. Although Credit Suisse did disclose in investor documents that it had been “widely reported in the press that the proceeds of the [LPNs] had been used in part to purchase defense equipment,” and that “subsequent press reports [had] also called into question whether all of the proceeds of the [LPNs] were used for authorized or appropriate purposes,” Credit Suisse did not disclose any of the information it had about the significant shortfall between the price Privinvest charged EMATUM for the purchase of assets and the value of those assets. In the EMATUM Exchange documentation, Credit Suisse also: (a) Included false and misleading statements regarding the use of proceeds of the original EMATUM loans; (b) failed to disclose kickbacks to Singh, Pearse, and Subeva, of which Singh was aware; (c) did not disclose any of the information Credit Suisse had about the significant shortfall between the price Privinvest charged EMATUM for the 27 boats and the fair market value of those boats; and (d) failed to disclose the existence of the ProIndicus and MAM loans,
28. By agreeing to the EMATUM Exchange, which delayed the EMATUM loan repayment date, Credit Suisse knew that EMATUM loan participation
29. During the investor road show for the EMATUM Exchange, Credit Suisse and Do Rosario and the then-Minister of Finance for Mozambique did not inform investors of (a) the significant valuation shortfall and risk that loan proceeds were improperly diverted, including to pay bribes; (b) the existence or maturity dates of the ProIndicus and MAM loans; (c) that Mozambique had not disclosed its true level of debt to the ProIndicus and MAM loans to the International Monetary Fund (IMF); and (d) kickbacks paid to Credit Suisse bankers in connection with the EMATUM loan.
30. Under the CSSEL Plea Agreement, CSSEL agreed, among other things, as follows: First, that CSSEL shall cooperate fully with the Offices in any and all matters relating to the conduct described in the CSSEL Plea Agreement and the CSSEL Statement of Facts and other conduct under investigation by the Offices or any other component of the Department of Justice 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, CSSEL 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 CSSEL, CSG, 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 CSSEL Plea Agreement and the CSSEL Statement of Facts and any other conduct under investigation by the Offices or any other component of the DOJ. Third, should CSSEL 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, CSSEL shall promptly report such evidence or allegation to the Offices. CSSEL also agreed to commit no further crimes and to work with Credit Suisse in fulfilling the obligations of CSG's DPA.
31. The Applicant represented to the Department that the LPNs were distributed from Credit Suisse's UK operations via CSSEL into international capital markets in 2013, to non-U.S. entities, pursuant to U.S. Securities and Exchange Commission (SEC) Regulation S. Credit Suisse is aware that the purchasers of those LPNs were made up of hedge funds, banks, and other institutions, but due to Regulation S, the purchasers' only obligation was to certify their status as Qualified Institutional Buyers (QIBs) in the applicable subscription agreements. The Applicant represents that it is unlikely that Covered Plans were initial purchasers of those LPNs. According to the Applicant, Credit Suisse has no way of knowing, and does not know in any systematic manner, whether (a) the fund owners or investors in the initial purchasers' funds themselves were Covered Plans, or (b) parties buying and selling the LPNs in the secondary market were Covered Plans.
32. Furthermore, the Applicant represented that in 2016, LPN investors had the option to exchange their LPNs for sovereign-issued Mozambique Exchange Bonds (the Exchange Bonds) issued under either Regulation S or SEC Rule 144A, in London, England. Credit Suisse represents that it is unlikely that those investors who chose to exchange their LPNs for Regulation S bonds, and who must have been QIBs and non-U.S. entities, were Covered Plans. The 2016 Exchange also included a Rule 144A tranche into which investors could exchange their LPNs; however, those buyers also were required to represent that they were QIBs, and as a result, it is unlikely that their clients were Covered Plans. According to the information on purchasers which Credit Suisse does have, at the time of the Exchange, Credit Suisse was aware that the LPNs, and subsequently, the Eurobonds, were held via either Euroclear or Clearstream accounts in Europe. While Credit Suisse has identified a list of the entities that maintained custodial accounts at Euroclear and Clearstream in connection with those transactions, Credit Suisse represents that it has no way of knowing the identities of the ultimate beneficial owners of the LPNs at the time of the Exchange.
33. To the extent that any investor believes that it has suffered losses in connection with the LPNs or the 2016 Exchange Bonds, Credit Suisse's resolutions with the SEC and DOJ provide those potentially damaged investors with two potential avenues through which to receive compensation, should they be able to support their claims with sufficient evidence. First, the SEC may set up a “fair fund” in connection with this matter pursuant to 15 U.S.C. 7246, Section 308(a) of the Sarbanes-Oxley Act of 2002, which would provide up to $65,000,000 (the civil penalty amounts levied in the underlying SEC settlement with Credit Suisse in connection with this matter) to compensate any investor able to prove losses to the SEC. Second, in connection with the CSSEL Plea, the Mandatory Victim Restitution Act (MVRA) requires the DOJ to contact potentially harmed investors, apprise them of their right to compensation from CSSEL if they are able to prove the charged conduct was the proximate cause of the harm suffered, and for Credit Suisse to provide that compensation pursuant to a judicially-administered process. To the extent that investors claim monetary damages in excess of those amounts provided for in any SEC Fair Fund, Credit Suisse and the DOJ have agreed to a methodology for determining investor eligibility and calculating eligible investor losses, which will be subject to ratification by the court presiding over CSSEL's sentencing hearing, which currently is scheduled for early March 2022. Credit Suisse does not currently know which, if any, potentially impacted investors might file claims on the SEC Fair Fund or MVRA restitution mechanism.
34. On October 19, 2021, in addition to the CSSEL Plea, the ultimate parent entity of CSSEL, CSG, entered into a three-year DPA with the Offices in connection with the same conduct as set forth in the CSSEL Statement of Facts
35. The DPA indicates that CSG admits, accepts, and acknowledges that it is responsible under United States law for the acts of its officers, directors, employees, and agents as charged in the CSSEL Information, and as set forth in the CSSEL Statement of Facts, and that the allegations described in the CSSEL Information and the facts described in the CSSEL Statement of Facts are true and accurate.
36. Under the DPA, CSG also agreed to continue to cooperate with the Offices, to enhance its compliance program and internal controls, and to provide enhanced reporting to the Offices on CSG's remediation and compliance program. Among other things, the enhanced reporting provisions require CSG to meet with the Offices at least quarterly and to submit yearly reports regarding the status of its remediation efforts, the results of its testing of its compliance program, and its proposals to ensure that its compliance program is reasonably designed, implemented, and enforced so that it is effective in deterring and detecting violations of fraud, money laundering, the Foreign Corrupt Practices Act, and other applicable anti-corruption laws.
37. On October 19, 2021, the Applicant filed an exemption application with the Department for Credit Suisse Affiliated QPAMs and Credit Suisse Related QPAMs to continue to rely on PTE 84-14, notwithstanding the criminal sentencing of CSSEL, which is tentatively scheduled for March 9, 2022. The Applicant represents that the exemption will enable the affected Covered Plans to continue their current investment strategy with their current investment manager or trustee without disruption. According to the Applicant, if the Department denies the requested exemption, plans would incur significant costs if they decide to find other asset managers. The Applicant states that many of the assets in the accounts could be difficult to transition, and the interruption of certain investment strategies, such as stable value, could create significant disruption for Covered Plans that are 401(k) plans and their participants and beneficiaries.
38. The Applicant represents that ineligibility from PTE 84-14 would result in hardship to plans (and their participants and beneficiaries) and that neither the protection of plans and participants nor the public interest would be served by permitting Section I(g) ineligibility to apply to the CS Affiliated QPAMs. According to the Applicant, ineligibility would deprive client plans of the investment management services (some of which are highly specialized) that these plans expected to receive when they appointed these managers, and could result in the termination of relationships that the fiduciaries of the plans have determined to be in the best interests of the plans. The Applicant goes on to represent that it would be disruptive and expensive to cause plan fiduciaries to reconsider their arrangements with their chosen investment manager because of uncertainties relating to PTE 84-14. This uncertainty, according to the Applicant, could disrupt certain investment strategies and result in significant redemptions from pooled funds, which would frustrate efforts to effectively manage the pooled funds' assets, harm remaining plan investors, and increase the expense ratios of the investment funds.
39. The Applicant further represents that, with respect to many Covered Plans, virtually every counterparty may be a service provider to that plan. Transactions between the Covered Plan and the party-in-interest service provider would be prohibited under one or more provisions of ERISA section 406, absent an exemption. The Applicant states that because counterparties are familiar and comfortable with PTE 84-14 for a wide variety of transactions, it is generally the most commonly used prohibited transaction exemption, and the exemption generally relied on by counterparties as the “backup” exemption for all transactions. Counterparties may provide less advantageous pricing or may not bid at all where the plan's investment manager is not a QPAM. Various strategies in which plans and IRAs are managed may depend significantly on PTE 84-14, including but not limited to stable value, leveraged loans, domestic and international fixed income and equities, and strategies that use structured products, options, swaps, and derivatives.
40. In its exemption request, the Applicant sought a ten-year exemption term. However, given the magnitude, gravity, duration and pervasiveness of Credit Suisse's misconduct, along with numerous Credit Suisse compliance control failures associated with both the CSAG and the CSSEL misconduct, the Department is unable to determine that a ten-year exemption would be in the interest of, and protective of, the Covered Plans. Therefore, the relief described in this proposed exemption is limited to one year. If the Applicant seeks additional exemptive relief, it must submit a new exemption application request before the end of the exemption's one-year term, assuming this proposed exemption is ultimately granted. At that time, the Department will review the application and other information it deems necessary to determine whether additional relief is warranted. No inference regarding whether the Department will grant additional relief should be drawn from the Department's decision to propose this one-year exemption.
41. The Department is particularly interested in comments from interested persons, including the Applicant, regarding whether any additional relief should be limited to an individual exemption that permits the types of transactions permitted by PTE 84-14, but that does not otherwise allow Credit Suisse asset managers to refer to themselves as QPAMs under PTE 84-14, with respect to Covered Plans that
42. In developing administrative exemptions under ERISA section 408(a), the Department implements its statutory directive to grant only exemptions that are appropriately protective of, and in the interest of, affected plans and IRAs. The Department is proposing this exemption with a number of protective conditions that would protect Covered Plans (and their participants and beneficiaries) and allow them to continue to utilize the services of the CS Affiliated and Related QPAMs. If this proposed exemption is granted as proposed, it would allow Covered Plans to avoid the costs and disruption to investment strategies that may arise if such plans and IRAs are forced, on short notice, to hire a different QPAM or asset manager because the CS Affiliated and Related QPAMs are no longer able to rely on the relief provided by PTE 84-14 and PTE 2019-07 due to the CSSEL Conviction. Covered Plan fiduciaries are cautioned that the Department's decision to propose this exemption should not be taken, in any way, as an indication that Credit Suisse asset managers will receive additional exemptive relief.
43. It is a material condition of this exemption that the CS Affiliated QPAMs and the CS Related QPAMs (including their officers, directors, agents other than CSG, CSAG, and CSSEL, employees of such QPAMs, and CSAG employees that do work for CS Affiliated or Related QPAMs) did not know or have reason to know of, and did not participate in the criminal conduct of CSAG and CSSEL that is the subject of either the CSAG or CSSEL Conviction. Further, any other party engaged on behalf of the CS Affiliated QPAMs and CS Related QPAMs who had responsibility for, or exercised authority in connection with the management of plan assets did not know or have reason to know of, and did not participate in the criminal conduct that is the subject of either the CSAG or CSSEL Conviction.
44. The protective conditions in this proposed exemption include a requirement that the CS Affiliated QPAMs do not currently and may not in the future employ or knowingly engage any of the individuals who participated in the criminal conduct of CSAG or CSSEL that is the subject of the CSAG or CSSEL Conviction.
45. This proposed exemption requires that no CS Affiliated QPAM may use its authority or influence to direct an “investment fund” (as defined in Section VI(b) of PTE 84-14) that is subject to ERISA or the Code to enter into any transaction with CSAG or CSSEL, or to engage CSAG or CSSEL to provide any service to such investment fund, regardless of whether such transaction or service may otherwise be within the scope of relief provided by an administrative or statutory exemption. Other than with respect to employee benefit plans maintained or sponsored for its own employees or the employees of an affiliate, neither CSAG nor CSSEL may act as a fiduciary within the meaning of ERISA section 3(21)(A)(i) or (iii), or Code section 4975(e)(3)(A) and (C), with respect to Covered Plan assets.
46. Each CS Affiliated QPAM must continue to maintain, adjust to the extent necessary, implement, and follow written policies and procedures (the Policies) that are reasonably designed to ensure: (a) That the asset management decisions of the CS Affiliated QPAMs are conducted independently of CSAG and CSSEL's corporate management and business activities; (b) that the CS Affiliated QPAMs fully comply with ERISA's fiduciary duties and with ERISA's and the Code's prohibited transaction provisions; (c) that the CS Affiliated QPAMs do not knowingly participate in any other person's violation of ERISA or the Code with respect to Covered Plans; (d) that any filings or statements made by the CS Affiliated QPAMs to regulators on behalf of, or in relation to, Covered Plans are materially accurate and complete; (e) that the CS Affiliated QPAMs do not make material misrepresentations or omit material information in their communications with such regulators, or in their communications with Covered Plans; and (f) that the CS Affiliated QPAMs comply with the terms of the exemption.
47. This proposed exemption requires each CS Affiliated QPAM to maintain, adjust to the extent necessary, and implement a program of training (the Training), to be conducted at least annually, for all relevant asset/portfolio management, trading, legal, compliance, and internal audit personnel. This required Training must, at a minimum, cover the Policies, ERISA and Code compliance, ethical conduct, the consequences for not complying with the conditions described in this proposal, and the requirement for prompt reporting of wrongdoing.
48. This proposed exemption requires that each CS Affiliated QPAM submit to an audit, conducted by an independent auditor, to evaluate the adequacy of and compliance with, the Policies and Training required by the exemption, as described below. The independent auditor must be prudently selected and have appropriate technical training and proficiency with ERISA and the Code to perform the tasks required by the exemption. The CS Affiliated QPAMs must grant the auditor unconditional access to their business, and the auditor's engagement must specifically require the auditor to test each CS Affiliated QPAM's operational compliance with the Policies and Training.
49. The independent auditor must issue a written audit report (the Audit Report) to CSAG and the CS Affiliated QPAM to which the audit applies, that describes the procedures performed by the auditor in connection with its examination. Further, the CS Affiliated QPAMs must promptly address any identified noncompliance, and must promptly address or prepare a written plan of action to address any determination as to the adequacy of the Policies and Training and the auditor's recommendations, if any, with respect to strengthening the Policies and Training of the respective CS Affiliated QPAM. The Audit Report must also be provided to the Department and will be made a part of the public record regarding this one-year exemption.
50. This proposed exemption further requires the General Counsel, or one of the three most senior executive officers of the CS Affiliated QPAM to which the Audit Report applies, to certify in writing, under penalty of perjury, that the officer has reviewed the Audit Report and the exemption, and that the CS Affiliated QPAM has addressed, corrected, and remedied (or has an appropriate written plan to address) any identified instance of noncompliance or inadequacy regarding the Policies and Training identified in the Audit Report.
51. With respect to any arrangement, agreement, or contract between a CS Affiliated QPAM and a Covered Plan, this proposal requires the CS Affiliated QPAMs to agree and warrant: (a) To comply with ERISA and the Code, including the standards of prudence and loyalty set forth in ERISA section 404; (b) to refrain from engaging in prohibited transactions that are not otherwise exempt; (c) to indemnify and hold harmless the Covered Plan for any actual losses resulting directly from, among other things, the CS Affiliated
52. Each CS Affiliated QPAM must provide a notice of its obligations under this exemption to each Covered Plan. Each CS Affiliated QPAM also must provide to each sponsor and beneficial owner of a Covered Plan a copy of the notice of the exemption as published in the
53. This proposed exemption requires each CS Affiliated QPAM, consistent with PTE 2019-07 to maintain a designated senior compliance officer (the Compliance Officer) who will be responsible for compliance with the Policies and Training requirements described in this proposed exemption. The Compliance Officer must conduct a review, for the twelve-month period that begins on November 21, 2021 (the Exemption Review), to determine the adequacy and effectiveness of the implementation of the Policies and Training, and issue a written report (the Exemption Report) on the findings.
54. This proposal requires Credit Suisse to impose internal procedures, controls, and protocols on CSAG and CSSEL to reduce the likelihood of any recurrence of conduct that is the subject of the CSAG and CSSEL Convictions.
55. ERISA section 408(a) provides, in part, that the Department may not grant an exemption unless the Department finds that the exemption is administratively feasible, in the interest of affected plans and of their participants and beneficiaries, and protective of the rights of such participants and beneficiaries. These criteria are discussed below.
56.
57.
58.
59. This proposed one-year exemption provides relief from certain of the restrictions set forth in ERISA section 406 and Code Section 4975(c)(1). No relief or waiver of a violation of any other law is provided by the exemption. The relief in this proposed one-year exemption would terminate immediately if, among other things, an entity within the CSAG corporate structure is convicted of any crime covered by Section I(g) of PTE 84-14 (other than the CSAG Conviction or the CSSEL Conviction). While such an entity could request a new exemption in that event, the Department is not obligated to grant the request. Consistent with this proposed exemption, the Department's consideration of additional exemptive relief is subject to the findings required under ERISA section 408(a) and Code section 4975(c)(2).
60. When interpreting and implementing this exemption, the Applicant and the CS Affiliated QPAMs should resolve any ambiguities in light of the exemption's protective purposes. To the extent additional clarification is necessary, these persons or entities should contact EBSA's Office of Exemption Determinations, at 202-693-8540.
61. Based on the conditions that are included in this proposed exemption, the Department has tentatively determined that the relief sought by the Applicant would satisfy the statutory requirements for an individual exemption under ERISA Section 408(a) and Code Section 4975(c)(2).
Notice of the proposed exemption will be provided to all interested persons within ten (10) days of the publication of the notice of proposed one-year exemption in the
If you submit a comment, EBSA recommends that you include your name and other contact information in the body of your comment, but DO NOT submit information that you consider to be confidential, or otherwise protected (such as Social Security number or an unlisted phone number) or confidential business information that you do not want publicly disclosed. All comments may be posted on the internet and can be retrieved by most internet search engines.
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of ERISA and/or Code section 4975(c)(2) does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of ERISA and/or the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of ERISA section 404, which, among other things, require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with ERISA section 404(a)(1)(B); nor does it affect the requirement of Code section 401(a) that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) Before an exemption may be granted under ERISA section 408(a) and/or Code section 4975(c)(2), the Department must find that the exemption is administratively feasible, in the interests of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of the plan;
(3) The proposed exemption, if granted, will be supplemental to, and not in derogation of, any other provisions of ERISA and/or the Code, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(4) The proposed exemption, if granted, will be subject to the express condition that the material facts and representations contained in each application are true and complete, and that each application accurately describes all material terms of the transaction which is the subject of the exemption.
The Department is considering granting a one-year exemption under the authority of ERISA section 408(a) and Internal Revenue Code (or Code) section 4975(c)(2), and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (76 FR 66637, 66644, October 27, 2011).
(a) The term “Convictions” means (1) the judgment of conviction against CSAG for one count of conspiracy to violate section 7206(2) of the Internal Revenue Code in violation of Title 18, United States Code, Section 371, that was entered in the District Court for the Eastern District of Virginia in Case Number 1:14-cr-188-RBS, on November 21, 2014 (the CSAG Conviction); and (2) the judgment of conviction against CSSEL, when it is entered, in Case Number 1:21-cr-00520-WFK (the CSSEL Conviction).
(b) The term “Covered Plan” means a plan subject to Part IV of Title I of ERISA (an “ERISA-covered plan”) or a plan subject to Code section 4975 (an “IRA”), in each case, with respect to which a CS Affiliated QPAM relies on PTE 84-14, or with respect to which a CS Affiliated QPAM (or any CSAG affiliate) has expressly represented that the manager qualifies as a QPAM or relies on the QPAM class exemption (PTE 84-14). A Covered Plan does not include an ERISA-covered plan or IRA to the extent the CS Affiliated QPAM has expressly disclaimed reliance on QPAM status or PTE 84-14 in entering into a contract, arrangement, or agreement with the ERISA-covered plan or IRA.
(c) The term “CSAG” means Credit Suisse AG.
(d) The term “CSSEL” means Credit Suisse Securities (Europe) Limited.
(e) The term “CS Affiliated QPAM” means Credit Suisse Asset Management, LLC (CSAM LLC) and Credit Suisse Asset Management Limited (CSAM Ltd.) and any current or future “affiliate” of CSAG or CSSEL (as defined in Part VI(d) of PTE 84-14) that qualifies as a “qualified professional asset manager” (as defined in Section VI(a) of PTE 84-14)
(f) The term “CS Related QPAM” means any current or future “qualified professional asset manager” (as defined in Section VI(a) of PTE 84-14) that relies on the relief provided by PTE 84-14, and with respect to which CSAG or CSSEL owns a direct or indirect five (5) percent or more interest, but with respect to which CSAG or CSSEL is not an “affiliate” (as defined in section VI(d)(1) of PTE 84-14) The term “CS Related QPAM” excludes CSAG and CSSEL.
(g) The term “Exemption Period” means the one-year period that begins on the date of the CSSEL Conviction.
(h) The term “CSAG Plea Agreement” means the plea agreement entered into between the United States of America, by and through the United States Department of Justice, and the United States Attorney's Office for the Eastern District of Virginia, and CSSEL in Case Number 1:14-cr-188-RBS.
(i) The term “CSSEL Plea Agreement” means the plea agreement entered into between the United States of America, by and through the United States Department of Justice, 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, and CSSEL in Case Number 1:21-cr-00520-WFK.
If this proposed exemption is granted, the CS Affiliated QPAMs, as defined in Section I(d), will not be precluded from relying on the exemptive relief provided by Prohibited Transaction Class Exemption 84-14 (PTE 84-14)
(a) The CS Affiliated QPAMs and the CS Related QPAMs (including their officers, directors, agents other than CSG, CSAG, and CSSEL, employees of such QPAMs, and CSAG employees that do work for CS Affiliated or Related QPAMs described in subparagraph (d) below) did not know or did not have reason to know of, and did not participate in the criminal conduct of CSAG and CSSEL that is the subject of the Convictions. Further, any other party engaged on behalf of the CS Affiliated QPAMs and CS Related QPAMs who had responsibility for, or exercised authority in connection with the management of plan assets did not know or have reason to know of, and did not participate in the criminal conduct that is the subject of the Convictions. For purposes of this exemption, including paragraph (c) below, “participate in” refers not only to active participation in the criminal conduct of CSAG and CSSEL that is the subject of the Convictions, but also to knowing approval of the criminal conduct, or knowledge of such conduct without taking active steps to prohibit such conduct, including reporting the conduct to the individual's supervisors, and to the Board of Directors.
(b) The CS Affiliated QPAMs and the CS Related QPAMs (including their officers, directors, agents other than CSAG, employees of such QPAMs, and CSAG employees described in subparagraph (d)(3) below) did not receive direct compensation, or knowingly receive indirect compensation, in connection with the criminal conduct of that is the subject of the Convictions. Further, any other party engaged on behalf of the CS Affiliated QPAMs and the CS Related QPAMs who had responsibility for, or exercised authority in connection with the management of plan assets did not receive direct compensation, or knowingly receive indirect compensation, in connection with the criminal conduct of that is the subject of the subject of the Convictions;
(c) The CS Affiliated QPAMs do not currently and will not in the future employ or knowingly engage any of the individuals who participated in the criminal conduct of CSAG and CSSEL that is the subject of the Convictions;
(d) At all times during the Exemption Period, no CS Affiliated QPAM will use its authority or influence to direct an “investment fund” (as defined in Section VI(b) of PTE 84-14) that is subject to ERISA or the Code and managed by such CS Affiliated QPAM with respect to one or more Covered Plans, to enter into any transaction with CSAG or CSSEL or to engage CSAG or CSSEL to provide any service to such investment fund, for a direct or indirect fee borne by such investment fund, regardless of whether such transaction or service may otherwise be within the scope of relief provided by an administrative or statutory exemption. A CS Affiliated QPAM will not fail this condition solely because:
(1) A CSAG affiliate serves as a local sub-custodian that is selected by an unaffiliated global custodian that, in turn, is selected by someone other than a CS Affiliated QPAM or CS Related QPAM;
(2) CSAG provides only necessary, non-investment, non-fiduciary services that support the operations of CS Affiliated QPAMs, at the CS Affiliated QPAM's own expense, and the Covered Plan is not required to pay any additional fee beyond its agreed-to asset management fee. This exception does not permit CSAG or its branches to provide any service to an investment fund managed by a CS Affiliated QPAM or CS Related QPAM; or
(3) CSAG employees are double-hatted, seconded, supervised, or subject to the control of a CS Affiliated QPAM;
(e) Any failure of a CS Affiliated QPAM to satisfy Section I(g) of PTE 84-14 arose solely from the Convictions;
(f) A CS Affiliated QPAM or a CS Related QPAM did not exercise authority over the assets of any plan subject to Part 4 of Title I of ERISA (an ERISA-covered plan) or Code section 4975 (an IRA) in a manner that it knew or should have known would further the criminal conduct that is the subject of the Convictions; or cause the CS Affiliated QPAM or CS Related QPAM or its affiliates to directly or indirectly profit from the criminal conduct that is the subject of the Convictions;
(g) Neither CSAG nor CSSEL will act as a fiduciary within the meaning of ERISA section 3(21)(A)(i) or (iii), or Code section 4975(e)(3)(A) and (C), with respect to ERISA-covered Plan and IRA assets, except that each may act as such a fiduciary (1) with respect to employee benefit plans sponsored for its own employees or employees of an affiliate; or (2) in connection with securities lending services of the New York Branch of CSAG. Neither CSAG nor CSSEL will be treated as violating the conditions of the exemption solely because it acted as an investment advice fiduciary within the meaning of ERISA section 3(21)(A)(ii) or Code section 4975(e)(3)(B);
(h)(1) Each CS Affiliated QPAM must maintain, adjust (to the extent necessary), implement, and follow the written policies and procedures described below (the Policies). Notwithstanding the preceding sentence, a CS Affiliated QPAM may not engage in any transaction or arrangement described in Section III(d)(1) through (3) of this exemption before the date the Policies below have been developed, implemented, and followed. The Policies must require and must be reasonably designed to ensure that:
(i) The asset management decisions of the CS Affiliated QPAM are conducted independently of CSAG's and CSSEL's corporate management and business activities, and without considering any fee a CS-related local sub-custodian may receive from those decisions. This condition does not preclude a CS Affiliated QPAM from receiving publicly available research and other widely available information from a CSAG affiliate other than CSSEL;
(ii) The CS Affiliated QPAM fully complies with ERISA's fiduciary duties, and with ERISA and the Code's prohibited transaction provisions, in each case as applicable with respect to each Covered Plan, and does not knowingly participate in any violation of these duties and provisions with respect to Covered Plans;
(iii) The CS Affiliated QPAM does not knowingly participate in any other person's violation of ERISA or the Code with respect to Covered Plans;
(iv) Any filings or statements made by the CS Affiliated QPAM to regulators, including but not limited to, the Department, the Department of the Treasury, the Department of Justice, and the Pension Benefit Guaranty Corporation, on behalf of or in relation to Covered Plans, are materially accurate and complete, to the best of such QPAM's knowledge at that time;
(v) To the best of its knowledge at that time, the CS Affiliated QPAM does not make material misrepresentations or omit material information in its communications with such regulators with respect to Covered Plans, or make material misrepresentations or omit material information in its communications with Covered Plans; and
(vi) The CS Affiliated QPAM complies with the terms of this one-year exemption, and CSAG complies with the terms of Section III(d)(2);
(2) Any violation of, or failure to comply with an item in subparagraphs (h)(1)(ii) through (vi), is corrected as soon as reasonably possible upon discovery, or as soon after the QPAM reasonably should have known of the noncompliance (whichever is earlier), and any such violation or compliance failure not so corrected is reported, upon the discovery of such failure to so correct, in writing. This report must be made to the head of compliance and the general counsel (or their functional equivalent) of the relevant CS Affiliated QPAM that engaged in the violation or failure, and the independent auditor responsible for reviewing compliance with the Policies. A CS Affiliated QPAM will not be treated as having failed to develop, implement, maintain, or follow the Policies, provided that it corrects any instance of noncompliance as soon as reasonably possible upon discovery, or as soon as reasonably possible after the CS Affiliated QPAM reasonably should have known of the noncompliance (whichever is earlier), and provided that it adheres to the reporting requirements set forth in this subparagraph (2);
(3) Each CS Affiliated QPAM must maintain, adjust (to the extent necessary), and implement or continue a program of training during the Exemption Period (the Training), to be conducted at least annually, for all relevant CS Affiliated QPAM asset/portfolio management, trading, legal, compliance, and internal audit personnel. The Training must:
(i) At a minimum, cover the Policies, ERISA and Code compliance (including applicable fiduciary duties and the prohibited transaction provisions), ethical conduct, the consequences for not complying with the conditions of this exemption (including any loss of exemptive relief provided herein), and the requirement for prompt reporting of wrongdoing; and
(ii) Be conducted by a professional who has been prudently selected and who has appropriate technical training and proficiency with ERISA and the Code to perform the tasks required by this exemption; and
(iii) Be conducted in-person, electronically, or via a website;
(i)(1) Each CS Affiliated QPAM submits to an audit by an independent auditor, who has been prudently selected and who has appropriate technical training and proficiency with ERISA and the Code, to evaluate the adequacy of, and each CS Affiliated QPAM's compliance with, the Policies and Training described herein. The audit requirement must be incorporated in the Policies. The audit must cover the 12-month period that begins on November 21, 2021. The audit must be completed no later than 180 days after the period to which it applies (May 19, 2023);
(2) Within the scope of the audit and to the extent necessary for the auditor, in its sole opinion, to complete its audit and comply with the conditions for relief described herein, and only to the extent such disclosure is not prevented by state or federal statute, or involves communications subject to attorney client privilege, each CS Affiliated QPAM and, if applicable, CSAG, will grant the auditor unconditional access to its business, including, but not limited to: Its computer systems; business records; transactional data; workplace locations; training materials; and personnel. Such access is limited to information relevant to the auditor's objectives as specified by the terms of this exemption;
(3) The auditor's engagement must specifically require the auditor to determine whether each CS Affiliated QPAM has developed, implemented, maintained, and followed the Policies in accordance with the conditions of this one-year exemption, and has developed and implemented the Training, as required herein;
(4) The auditor's engagement must specifically require the auditor to test each CS Affiliated QPAM's operational compliance with the Policies and Training. In this regard, the auditor must test, for each CS Affiliated QPAM, a sample of such: (1) CS Affiliated QPAM's transactions involving Covered Plans; (2) each CS Affiliated QPAM's transactions involving CSAG affiliates that serve as a local sub-custodian. The samples must be sufficient in size and nature to afford the auditor a reasonable basis to determine such CS Affiliated QPAM's operational compliance with the Policies and Training;
(5) For each audit, on or before the end of the relevant period described in Section III(i)(1) for completing the audit, the auditor must issue a written report (the Audit Report) to CSAG and the CS Affiliated QPAM to which the audit applies that describes the procedures performed by the auditor in connection with its examination. The auditor, at its discretion, may issue a single consolidated Audit Report that covers all the CS Affiliated QPAMs. The Audit Report must include the auditor's specific determinations regarding:
(i) The adequacy of each CS Affiliated QPAM's Policies and Training; each CS Affiliated QPAM's compliance with the Policies and Training; the need, if any, to strengthen such Policies and Training; and any instance of the respective CS Affiliated QPAM's noncompliance with the written Policies and Training described in Section III(h) above. The CS Affiliated QPAM must promptly address any noncompliance. The CS Affiliated QPAM must promptly address or prepare a written plan of action to address any determination as to the adequacy of the Policies and Training and the auditor's recommendations (if any) with respect to strengthening the Policies and Training of the respective CS Affiliated QPAM. Any action taken or the plan of action to be taken by the respective CS Affiliated QPAM must be included in an addendum to the Audit Report (such addendum must be completed prior to the certification described in Section III(i)(7) below). In the event such a plan of action to address the auditor's recommendation regarding the adequacy of the Policies and Training is not completed by the time of submission of the Audit Report, the following period's Audit Report must state whether the plan was satisfactorily completed. Any determination by the auditor that a CS Affiliated QPAM has implemented, maintained, and followed sufficient Policies and Training must not be based solely or in substantial part on an absence of evidence indicating noncompliance. In this last regard, any finding that a CS Affiliated QPAM has complied with the requirements under this subparagraph must be based on evidence that the particular CS Affiliated QPAM has actually implemented, maintained, and followed the Policies and Training required by this exemption. Furthermore, the auditor must not solely rely on the Annual Exemption Report created by the Compliance Officer, as described in Section III(m) below, as the basis for the auditor's conclusions in lieu of independent determinations and testing performed by the auditor as required by Section III(i)(3) and (4) above; and
(ii) The adequacy of the Exemption Review described in Section III(m);
(6) The auditor must notify the respective CS Affiliated QPAM of any instance of noncompliance identified by the auditor within five (5) business days after such noncompliance is identified by the auditor, regardless of whether the audit has been completed as of that date;
(7) With respect to the Audit Report, the general counsel, or one of the three most senior executive officers of the CS Affiliated QPAM to which the Audit Report applies, must certify in writing, under penalty of perjury, that the officer has reviewed the Audit Report and this exemption; that, to the best of such
(8) A copy of the Audit Report must be provided CSAG's Board of Directors and either the Risk Committee or the Audit Committee of CSAG's Board of Directors; and a senior executive officer at either the Risk Committee or the Conduct and Financial Crime Control Committee must review the Audit Report for each CS Affiliated QPAM and must certify in writing, under penalty of perjury, that such officer has reviewed each Audit Report;
(9) Each CS Affiliated QPAM provides its certified Audit Report, by regular mail to: Office of Exemption Determinations (OED), 200 Constitution Avenue NW, Suite 400, Washington, DC 20210, or by private carrier to: 122 C Street NW, Suite 400, Washington, DC 20001-2109. The delivery must take place no later than 45 days following completion of the Audit Report. The Audit Report will be made part of the public record regarding this one-year exemption. Furthermore, each CS Affiliated QPAM must make its Audit Reports unconditionally available, electronically or otherwise, for examination upon request by any duly authorized employee or representative of the Department, other relevant regulators, and any fiduciary of a Covered Plan;
(10) Any engagement agreement with an auditor to perform the audit required by this exemption must be submitted to OED no later than two (2) months after the execution of such agreement;
(11) The auditor must provide the Department, upon request, for inspection and review, access to all the workpapers created and used in connection with the audit, provided such access, inspection, and review is otherwise permitted by law; and
(12) CSAG and/or the CS Affiliated QPAM must notify the Department of a change in the independent auditor no later than two (2) months after the engagement of a substitute or subsequent auditor and must provide an explanation for the substitution or change including a description of any material disputes involving the terminated auditor and CSAG and/or the CS Affiliated QPAMs;
(j) As of the effective date of this one-year exemption, with respect to any arrangement, agreement, or contract between a CS Affiliated QPAM and a Covered Plan, CS Affiliated QPAM agrees and warrants to Covered Plans:
(1) To comply with ERISA and the Code, as applicable with respect to such Covered Plan; to refrain from engaging in prohibited transactions that are not otherwise exempt (and to promptly correct any prohibited transactions); and to comply with the standards of prudence and loyalty set forth in ERISA section 404 with respect to each such ERISA-covered plan and IRA to the extent that ERISA section 404 is applicable;
(2) To indemnify and hold harmless the Covered Plan for any actual losses resulting directly from a CS Affiliated QPAM's violation of ERISA's fiduciary duties, as applicable, and of the prohibited transaction provisions of ERISA and the Code, as applicable; a breach of contract by a CS Affiliated QPAM; or any claim arising out of the failure of such CS Affiliated QPAM to qualify for the exemptive relief provided by PTE 84-14 as a result of a violation of Section I(g) of PTE 84-14 other than the Convictions. This condition applies only to actual losses caused by the CS Affiliated QPAM's violations;
(3) Not to require (or otherwise cause) the Covered Plan to waive, limit, or qualify the liability of the CS Affiliated QPAM for violating ERISA or the Code or engaging in prohibited transactions;
(4) Not to restrict the ability of the Covered Plan to terminate or withdraw from its arrangement with the CS Affiliated QPAM, with respect to any investment in a separately-managed account or pooled fund subject to ERISA and managed by such CS Affiliated QPAM, with the exception of reasonable restrictions, appropriately disclosed in advance, that are specifically designed to ensure equitable treatment of all investors in a pooled fund in the event such withdrawal or termination may have adverse consequences for all other investors. In connection with any such arrangement involving investments in pooled funds subject to ERISA entered into after the effective date of this exemption, the adverse consequences must relate to a lack of liquidity of the underlying assets, valuation issues, or regulatory reasons that prevent the fund from promptly redeeming an ERISA-covered plan's or IRA's investment, and such restrictions must be applicable to all such investors and be effective no longer than reasonably necessary to avoid the adverse consequences;
(5) Not to impose any fees, penalties, or charges for such termination or withdrawal with the exception of reasonable fees, appropriately disclosed in advance, that are specifically designed to prevent generally-recognized abusive investment practices or specifically designed to ensure equitable treatment of all investors in a pooled fund in the event such withdrawal or termination may have adverse consequences for all other investors, provided that such fees are applied consistently and in a like manner to all such investors;
(6) Not to include exculpatory provisions disclaiming or otherwise limiting liability of the CS Affiliated QPAMs for a violation of such agreement's terms. To the extent consistent with ERISA section 410, however, this provision does not prohibit disclaimers for liability caused by an error, misrepresentation, or misconduct of a plan fiduciary or other party hired by the plan fiduciary who is independent of CSAG and its affiliates, or damages arising from acts outside the control of the CS Affiliated QPAM; and
(7) Within 120 days after the effective date of this one-year exemption, each CS Affiliated QPAM must provide a notice of its obligations under this Section III(j) to each Covered Plan. For prospective Covered Plans that enter into a written asset or investment management agreement with a CS Affiliated QPAM on or after a date that is 120 days after the effective date of this exemption, the CS Affiliated QPAM must agree to its obligations under this Section III(j) in an updated investment management agreement between the CS Affiliated QPAM and such clients or other written contractual agreement. Notwithstanding the above, a CS Affiliated QPAM will not violate the condition solely because a Covered Plan refuses to sign an updated investment management agreement. For Covered Plans that were provided a previous form of investment management agreement prior to the effective date of this exemption, and sign and return such agreement with a CS Affiliated QPAM within 120 days after the
(k) Within 60 days after the effective date of this one-year exemption, each CS Affiliated QPAM provides notice of the exemption as published in the
(l) The CS Affiliated QPAM must comply with each condition of PTE 84-14, as amended, with the sole exception of the violation of Section I(g) of PTE 84-14 that is attributable to the Convictions. If, during the Exemption Period, an entity within the Credit Suisse corporate structure is convicted of a crime described in Section I(g) of PTE 84-14 (other than the Convictions), relief in this exemption would terminate immediately;
(m)(1) Within 60 days after the effective date of this exemption, each CS Affiliated QPAM must designate a senior compliance officer (the Compliance Officer) who will be responsible for compliance with the Policies and Training requirements described herein. For purposes of this condition (m), each relevant line of business within a CS Affiliated QPAM may designate its own Compliance Officer(s). Notwithstanding the above, no person, including any person referenced in the CSAG or CSSEL Statement of Facts that gave rise to the CSAG or CSSEL Plea Agreement, who knew of, or should have known of, or participated in, any misconduct described in the CSAG or CSSEL Statement of Facts, by any party, may be involved with the designation or responsibilities required by this condition, unless the person took active documented steps to stop the misconduct. The Compliance Officer must conduct a review of each twelve month period of the Exemption Period (the Exemption Review), to determine the adequacy and effectiveness of the implementation of the Policies and Training. With respect to the Compliance Officer, the following conditions must be met:
(i) The Compliance Officer must be a professional who has extensive experience with, and knowledge of, the regulation of financial services and products, including under ERISA and the Code; and
(ii) The Compliance Officer must have a direct reporting line to the highest ranking corporate officer in charge of compliance for the applicable CS Affiliated QPAM.
(2) With respect to the Exemption Review, the following conditions must be met:
(i) The Annual Exemption Review includes a review of the CS Affiliated QPAM's compliance with and effectiveness of the Policies and Training and of the following: Any compliance matter related to the Policies or Training that was identified by, or reported to, the Compliance Officer or others within the compliance and risk control function (or its equivalent) during the previous year; the most recent Audit Report issued pursuant to this exemption or PTE 2019-07; any material change in the relevant business activities of the CS Affiliated QPAMs; and any change to ERISA, the Code, or regulations related to fiduciary duties and the prohibited transaction provisions that may be applicable to the activities of the CS Affiliated QPAMs;
(ii) The Compliance Officer prepares a written report for the Exemption Review (an Exemption Report) that (A) summarizes his or her material activities during the prior year; (B) sets forth any instance of noncompliance discovered during the prior year, and any related corrective action; (C) details any change to the Policies or Training to guard against any similar instance of noncompliance occurring again; and (D) makes recommendations, as necessary, for additional training, procedures, monitoring, or additional and/or changed processes or systems, and management's actions on such recommendations;
(iii) In the Exemption Report, the Compliance Officer must certify in writing that to the best of his or her knowledge at the time: (A) The report is accurate; (B) the Policies and Training are working in a manner which is reasonably designed to ensure that the Policies and Training requirements described herein are met; (C) any known instance of noncompliance during the prior year and any related correction taken to date have been identified in the Exemption Report; and (D) the CS Affiliated QPAMs have complied with the Policies and Training, and/or corrected (or are correcting) any known instances of noncompliance in accordance with Section III(h) above;
(iv) The Exemption Report must be provided to appropriate corporate officers of CSAG and to each CS Affiliated QPAM to which such report relates, and to the head of compliance and the general counsel (or their functional equivalent) of CSAG and the relevant CS Affiliated QPAM; and the report must be made unconditionally available to the independent auditor described in Section III(i) above;
(v) The Exemption Review, including the Compliance Officer's written Annual Exemption Report, must cover the twelve month period beginning on November 21, 2021. The Annual Review, including the Compliance Officer's written Report, must be completed within three (3) months following the end of the period to which it relates;
(n) CSAG imposes its internal procedures, controls, and protocols on CSAG and CSSEL to reduce the likelihood of any recurrence of conduct that is the subject of the Convictions;
(o) CSAG complies in all material respects with the requirements imposed by a U.S regulatory authority in connection with the Convictions;
(p) Each CS Affiliated QPAM will maintain records necessary to demonstrate that the conditions of this exemption have been met for six (6) years following the date of any transaction for which the CS Affiliated QPAM relies upon the relief in this exemption;
(q) During the Exemption Period, CSAG must: (1) Immediately disclose to the Department any Deferred Prosecution Agreement (a DPA) or Non-Prosecution Agreement (an NPA) with the U.S. Department of Justice, entered into by Credit Suisse Group AG or CSAG or any of its affiliates (as defined
(r) Within 60 days after the effective date of this exemption, each CS Affiliated QPAM, in its agreements with, or in other written disclosures provided to Covered Plans, will clearly and prominently inform Covered Plan clients of their right to obtain a copy of the Policies or a description (Summary Policies) which accurately summarizes key components of the CS Affiliated QPAM's written Policies developed in connection with this exemption. If the Policies are thereafter changed, each Covered Plan client must receive a new disclosure within six (6) months following the end of the calendar year during which the Policies were changed.
(s) A CS Affiliated QPAM will not fail to meet the terms of this one-year exemption solely because a different CS Affiliated QPAM fails to satisfy a condition for relief described in Sections I(c), (d), (h), (i), (j), (k), (l), (p) or (r); or if the independent auditor described in Section III(i) fails to comply with a provision of the exemption other than the requirement described in Section III(i)(11), provided that such failure did not result from any actions or inactions of CSAG or its affiliates; and
(t) All the material facts and representations set forth in the Summary of Facts and Representations are true and accurate.
Weeks of January 10, 17, 24, 31, February 7, 14, 2022.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public.
There are no meetings scheduled for the week of January 10, 2022.
There are no meetings scheduled for the week of January 17, 2022.
There are no meetings scheduled for the week of January 31, 2022.
There are no meetings scheduled for the week of February 10, 2022.
For more information or to verify the status of meetings, contact Wesley Held at 301-287-3591 or via email at
The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555, at 301-415-1969, or by email at
The NRC is holding the meetings under the authority of the Government in the Sunshine Act, 5 U.S.C. 552b.
For the Nuclear Regulatory Commission.
Pension Benefit Guaranty Corporation.
Notice.
The Pension Benefit Guaranty Corporation (PBGC) announces the appointment of members of the PBGC Performance Review Board.
In accordance with 5 U.S.C. 4314(c)(4), made applicable by PBGC's Senior Level Performance Management System, PBGC announces the appointment of those individuals who have been selected to serve as members of PBGC's Performance Review Board. The Performance Review Board is responsible for making recommendations on each senior level (SL) professional's annual summary rating, performance-based adjustment, and performance award to the appointing authority.
The following individuals have been designated as members of PBGC's 2021 Performance Review Board:
Issued in Washington, DC.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a Priority Mail Express International, Priority Mail International, First-Class Package International Service & Commercial ePacket contract to the list of Negotiated Service Agreements in the Competitive Product List in the Mail Classification Schedule.
Christopher C. Meyerson, (202) 268-7820.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on December 15, 2021, it filed with the Postal Regulatory Commission a
On September 29, 2021, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-FINRA-2021-024 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
The Commission is publishing this order pursuant to Section 19(b)(2)(B) of the Exchange Act
FINRA is proposing to amend Rule 2231 (Customer Account Statements) to add new supplementary materials, incorporate specified provisions from dual FINRA-NYSE temporary rules, and delete those temporary rules. The proposed rule change would amend Rule 2231 to add new supplementary materials pertaining to compliance with FINRA Rule 4311 (Carrying Agreements), the transmission of customer account statements to other persons or entities, the use of electronic media to satisfy delivery obligations, and compliance with FINRA Rule 3150 (Holding of Customer Mail).
Specifically, proposed new Supplementary Material .01 to Rule 2231 would remind firms of their obligations under Rule 4311, including specifically the rights and obligations of carrying firms under Rule 4311(c)(2) that generally require each carrying agreement in which accounts are to be carried on a fully disclosed basis to expressly allocate to the carrying firm the responsibility for the safeguarding of funds and securities for the purposes of Exchange Act Rule 15c3-3 and for preparing and transmitting statements of account to customers.
Proposed new Supplementary Material .02 to Rule 2231 would prohibit member firms from sending customer account statements to third parties unless: (1) The customer provided written instructions to the
Proposed new Supplementary Material .03 to Rule 2231 would allow member firms to satisfy their delivery obligations under the rule by using electronic media, subject to compliance with standards established by the Commission on the use of electronic media for delivery purposes.
Proposed new Supplementary Material .04 to Rule 2231 would permit member firms to hold customer mail, including customer account statements or other communications relating to a customer's account, subject to the requirements of Rule 3150.
Proposed new Supplementary Material .05 to Rule 2231 would incorporate without substantive changes NYSE Rule Interpretation 409T(a)/02 by requiring the following information to be clearly and prominently disclosed on the front of a customer account statement: (1) The identity of the introducing and clearing firm, if different, and their respective contact information for customer service (although the proposed rule change would permit the identity of the clearing firm and its contact information to appear on the back of the statement provided such information is in “bold” or “highlighted” letters); (2) that the clearing firm is a member of SIPC; and (3) the opening and closing balances for the account.
Proposed new Supplementary Material .06 to Rule 2231 would incorporate without substantive changes NYSE Rule Interpretation 409T(a)/04 which provides that where a customer account statement includes assets the member firm does not carry on behalf of a customer and are not included on the member's books and records, such assets must be clearly and distinguishably separated on the account statement. The proposed rule change would also require the account statement to: (1) Clearly indicate that such externally held assets are included on the statement solely as a courtesy to the customer; (2) disclose that information (including valuation) for such externally held assets included on the statement is derived from the customer or other external source for which the member is not responsible; and (3) identify that such externally held assets may not be covered by SIPC.
Proposed new Supplementary Material .07 to Rule 2231 would incorporate without substantive changes NYSE Rule Interpretation 409T(a)/05, which provides that where the logo, trademark or other identification of a person (other than the introducing firm or clearing firm) appears on a customer account statement, then the identity of such person and the relationship to the introducing, clearing, or other firm included on the statement must be provided and may not be used in a manner that is misleading or causes customer confusion.
Proposed new Supplementary Material .08 to Rule 2231 would incorporate without substantive changes NYSE Rule Interpretation 409T(a)/06 by establishing a member firm's obligations where the member holding a customer's account and another person who separately offers financial related products or services to the same customer jointly provide their respective customer account statements together with a statement summarizing or combining assets held in different accounts.
Finally, FINRA is proposing to delete NYSE Rule 409T and NYSE Rule Interpretation 409T in their entirety on the basis that the underlying concepts in these provisions will have been included in Rule 2231, are duplicative of other rules, or are outdated.
Amendment No. 1 would modify the proposed rule change by changing the term “clearing firm” to “carrying firm” in the following places: (1) Proposed Rule 2231(a); (2) proposed Rule 2231.05(a) and (b); (3) proposed Rule 2231.07; and (4) proposed Rule 2231.08(d). FINRA stated that changing the term “clearing firm” to “carrying firm” would maintain consistency given the proposed supplementary materials are derived largely from their corresponding NYSE provisions, which use the term “carrying organization.”
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Exchange Act to determine whether the proposed rule change,
Pursuant to Section 19(b)(2)(B) of the Exchange Act,
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposed rule change, as modified by Amendment No. 1. In particular, the Commission invites the written views of interested persons concerning whether the proposed rule change, as modified by Amendment No. 1, is consistent with the Exchange Act and the rules thereunder.
Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposed rule change, as modified by Amendment No. 1, should be approved or disapproved by January 31, 2022. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by February 14, 2022.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File No. SR-FINRA-2021-024 and should be submitted on or before January 31, 2022. If comments are received, any rebuttal comments should be submitted on or before February 14, 2022.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing a proposal to amend the MIAX Pearl Options Fee Schedule (the “Fee Schedule”) to amend the fees for the Exchange's MIAX Express Network Full Service (“MEO”)
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the Fee Schedule to increase the fees for its Full Service MEO Ports, Bulk and Single (the “Proposed Access Fees”), which allow Members
The Exchange currently offers different types of MEO Ports depending on the services required by the Member, including a Full Service MEO Port-Bulk,
Unlike other options exchanges that provide similar port functionality and charge fees on a per port basis,
The Exchange assesses Members Full Service MEO Port Fees, either for a Full Service MEO Port—Bulk and/or for a Full Service MEO Port—Single, based upon the monthly total volume executed by a Member and its Affiliates
(i) If its volume falls within the parameters of Tier 1 of the Non-Transaction Fees Volume-Based Tiers, or volume up to 0.30%, $3,000;
(ii) if its volume falls within the parameters of Tier 2 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.30% up to 0.60%, $4,500; and
(iii) if its volume falls with the parameters of Tier 3 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.60%, $5,000.
(i) If its volume falls within the parameters of Tier 1 of the Non-Transaction Fees Volume-Based Tiers, or volume up to 0.30%, $5,000;
(ii) if its volume falls within the parameters of Tier 2 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.30% up to 0.60%, $7,500; and
(iii) if its volume falls with the parameters of Tier 3 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.60%, $10,000.
(i) If its volume falls within the parameters of Tier 1 of the Non-Transaction Fees Volume-Based Tiers, or volume up to 0.30%, $2,000;
(ii) if its volume falls within the parameters of Tier 2 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.30% up to 0.60%, $3,375; and
(iii) if its volume falls with the parameters of Tier 3 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.60%, $3,750.
(i) If its volume falls within the parameters of Tier 1 of the Non-Transaction Fees Volume-Based Tiers, or volume up to 0.30%, $2,500;
(ii) if its volume falls within the parameters of Tier 2 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.30% up to 0.60%, $3,500; and
(iii) if its volume falls with the parameters of Tier 3 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.60%, $4,500.
The Exchange offers various types of ports with differing prices because each port accomplishes different tasks, are suited to different types of Members, and consume varying capacity amounts of the network. For instance, MEO ports allow for a higher throughput and can handle much higher quote/order rates than FIX ports. Members that are Market Makers
The Exchange now proposes to increase its monthly Full Service MEO Port fees since it has not done so since the fees were adopted in 2018,
The Exchange has historically undercharged for Full Service MEO Ports as compared to other options exchanges
The proposed fees are immediately effective.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
On March 29, 2019, the Commission issued its Order Disapproving Proposed Rule Changes to Amend the Fee Schedule on the BOX Market LLC Options Facility to Establish BOX Connectivity Fees for Participants and Non-Participants Who Connect to the BOX Network (the “BOX Order”).
The Exchange believes that exchanges, in setting fees of all types, should meet very high standards of transparency to demonstrate why each new fee or fee increase meets the requirements of the Act that fees are reasonable, equitably allocated, not unfairly discriminatory, and not create an undue burden on competition among market participants. The Exchange believes this high standard is especially important when an exchange imposes various access fees for market participants to access an exchange's marketplace. The Exchange deems the Full Service MEO Port fees to be access fees. It records these fees as part of its “Access Fees” revenue in its financial statements.
In its Guidance, the Commission Staff stated that, “[a]s an initial step in assessing the reasonableness of a fee, staff considers whether the fee is constrained by significant competitive forces.”
The Guidance defines “supra-competitive profit” as “profits that exceed the profits that can be obtained in a competitive market.”
Based on this analysis, the Exchange believes the Proposed Access Fees are reasonable and do not result in a “supra-competitive”
The Proposed Access Fees are based on a cost-plus model. In determining the appropriate fees to charge, the Exchange considered its costs to provide Full Service MEO Ports, using what it believes to be a conservative methodology (
To determine the Exchange's costs to provide the access services associated with the Proposed Access Fees, the Exchange conducted an extensive cost review in which the Exchange analyzed nearly every expense item in the Exchange's general expense ledger to determine whether each such expense relates to the Proposed Access Fees, and, if such expense did so relate, what portion (or percentage) of such expense actually supports the access services. The sum of all such portions of expenses represents the total cost of the Exchange to provide the access services associated with the Proposed Access Fees.
The Exchange also provides detailed information regarding the Exchange's cost allocation methodology—namely, information that explains the Exchange's rationale for determining that it was reasonable to allocate certain expenses described in this filing towards the cost to the Exchange to provide the access services associated with the Proposed Access Fees. The Exchange conducted a thorough internal analysis to determine the portion (or percentage) of each expense to allocate to the support of access services associated with the Proposed Access Fees. This analysis included discussions with each Exchange department head to determine the expenses that support access services associated with the Proposed Access Fees. Once the expenses were identified, the Exchange department heads, with the assistance of the Exchange's internal finance department, reviewed such expenses holistically on an Exchange-wide level to determine what portion of that expense supports providing access services for the Proposed Access Fees. The sum of all such portions of expenses represents the total cost to the Exchange to provide access services associated with the Proposed Access Fees. For the avoidance of doubt, no expense amount was allocated twice.
To determine the Exchange's projected revenues associated with the Proposed Access Fees, the Exchange analyzed the number of Members currently utilizing Full Service MEO Ports, and, utilizing a recent monthly billing cycle representative of 2021 monthly revenue, extrapolated annualized revenue on a going-forward basis. The Exchange does not believe it is appropriate to factor into its analysis future revenue growth or decline into its projections for purposes of these calculations, given the uncertainty of such projections due to the continually changing access needs of market participants, discounts that can be achieved due to lower trading volume and vice versa, market participant consolidation, etc. Additionally, the Exchange similarly does not factor into its analysis future cost growth or decline. The Exchange is presenting its revenue and expense associated with the Proposed Access Fees in this filing in a manner that is consistent with how the Exchange presents its revenue and expense in its Audited Unconsolidated Financial Statements. The Exchange's most recent Audited Unconsolidated Financial Statement is for 2020. However, since the revenue and expense associated with the Proposed Access Fees were not in place in 2020 or for the majority of 2021 (other than July and August 2021), the Exchange believes its 2020 Audited Unconsolidated Financial Statement is not representative of its current total annualized revenue and costs associated with the Proposed Access Fees. Accordingly, the Exchange believes it is more appropriate to analyze the Proposed Access Fees utilizing its 2021 revenue and costs, as described herein, which utilize the same presentation methodology as set forth in the Exchange's previously-issued Audited Unconsolidated Financial Statements. Based on this analysis, the Exchange believes that the Proposed Access Fees are fair and reasonable because they will not result in excessive pricing or supra-competitive profit when comparing the Exchange's total annual expense associated with providing the services associated with the Proposed Access Fees versus the total projected annual revenue the Exchange will collect for providing those services. The Exchange notes that this is the same justification process utilized by the Exchange's affiliate, MIAX Emerald, in a filing recently noticed and not suspended by the Commission when MIAX Emerald adopted MEI Port fees.
The Exchange has been subject to price increases upwards of 30% on network equipment due to supply chain shortages. This, in turn, results in higher overall costs for ongoing system maintenance, but also to purchase the items necessary to ensure ongoing system resiliency, performance, and determinism. These costs are expected to continue to go up as the U.S. economy continues to struggle with supply chain and inflation related issues.
As mentioned above, the Exchange projects that the annualized expense for 2021 to provide the services associated with the Proposed Access Fees to be approximately $897,084 per annum or an average of $74,757 per month and that these costs are expected to increase not only due to anticipated significant inflationary pressure, but also periodic fee increases by third parties.
The Exchange only has four primary sources of revenue and cost recovery mechanisms: Transaction fees, access fees (which includes the Proposed Access Fees), regulatory fees, and market data fees. Accordingly, the Exchange must cover all of its expenses from these four primary sources of revenue and cost recovery mechanisms. Until recently, the Exchange has operated at a cumulative net annual loss since it launched operations in 2017.
The Exchange believes that the Proposed Access Fees are fair and reasonable because they will not result in excessive pricing or supra-competitive profit, when comparing the total annual expense that the Exchange projects to incur in connection with providing these access services versus the total annual revenue that the Exchange projects to collect in connection with services associated with the Proposed Access Fees. For 2021,
As discussed, the Exchange conducted an extensive cost review in which the Exchange analyzed nearly every expense item in the Exchange's general expense ledger (this includes over 150 separate and distinct expense items) to determine whether each such expense relates to the access services associated with the Proposed Access Fees, and, if such expense did so relate, what portion (or percentage) of such expense actually supports those services, and thus bears a relationship that is, “in nature and closeness,” directly related to those services. The sum of all such portions of expenses represents the total cost of the Exchange to provide access services associated with the Proposed Access Fees.
For 2021, total third-party expense, relating to fees paid by the Exchange to third-parties for certain products and services for the Exchange to be able to provide the access services associated with the Proposed Access Fees, is projected to be $40,166. This includes, but is not limited to, a portion of the fees paid to: (1) Equinix, for data center
For clarity, the Exchange took a conservative approach in determining the expense and the percentage of that expense to be allocated to the providing access services in connection with the Proposed Access Fees. Only a portion of all fees paid to such third-parties is included in the third-party expense herein, and no expense amount is allocated twice. Accordingly, the Exchange does not allocate its entire information technology and communication costs to the access services associated with the Proposed Access Fees. This may result in the Exchange under allocating an expense to the provision of access services in connection with the Proposed Access Fees and such expenses may actually be higher or increase above what the Exchange utilizes within this proposal. Further, the Exchange notes that, with respect to the MIAX Pearl expenses included herein, those expenses only cover the MIAX Pearl options market; expenses associated with the MIAX Pearl equities market are accounted for separately and are not included within the scope of this filing. As noted above, the percentage allocations used in this proposed rule change may differ from past filings from the Exchange or its affiliates due to, among other things, changes in expenses charged by third-parties, adjustments to internal resource allocations, and different system architecture of the Exchange as compared to its affiliates. Further, as part its ongoing assessment of costs and expenses, the Exchange recently conducted a periodic thorough review of its expenses and resource allocations which, in turn, resulted in a revised percentage allocations in this filing. Therefore, the percentage allocations used in this proposed rule change may differ from past filings from the Exchange or its affiliates due to, among other things, changes in expenses charged by third-parties, adjustments to internal resource allocations, and different system architecture of the Exchange as compared to its affiliates.
The Exchange believes it is reasonable to allocate such third-party expense described above towards the total cost to the Exchange to provide the access services associated with the Proposed Access Fees. In particular, the Exchange believes it is reasonable to allocate the identified portion of the Equinix expense because Equinix operates the data centers (primary, secondary, and disaster recovery) that host the Exchange's network infrastructure. This includes, among other things, the necessary storage space, which continues to expand and increase in cost, power to operate the network infrastructure, and cooling apparatuses to ensure the Exchange's network infrastructure maintains stability. Without these services from Equinix, the Exchange would not be able to operate and support the network and provide the access services associated with the Proposed Access Fees to its Members and their customers. The Exchange did not allocate all of the Equinix expense toward the cost of providing the access services associated with the Proposed Access Fees, only that portion which the Exchange identified as being specifically mapped to providing the access services associated with the Proposed Access Fees, approximately 1.80% of the total applicable Equinix expense. The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the access services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
The Exchange believes it is reasonable to allocate the identified portion of the Zayo expense because Zayo provides the internet, fiber and bandwidth connections with respect to the network, linking the Exchange with its affiliates, MIAX and MIAX Emerald, as well as the data center and disaster recovery locations. As such, all of the trade data, including the billions of messages each day per exchange, flow through Zayo's infrastructure over the Exchange's network. Without these services from Zayo, the Exchange would not be able to operate and support the network and provide the access services associated with the Proposed Access Fees. The Exchange did not allocate all of the Zayo expense toward the cost of providing the access services associated with the Proposed Access Fees, only the portion which the Exchange identified as being specifically mapped to providing the Proposed Access Fees, approximately 0.90% of the total applicable Zayo expense. The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the access services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
The Exchange believes it is reasonable to allocate the identified portions of the SFTI expense and various other service providers' (including Thompson Reuters, NYSE, NASDAQ, and Internap) expense because those entities provide connectivity and feeds for the entire U.S. options industry, as well as the content, connectivity services, and infrastructure services for critical components of the network. Without these services from SFTI and various other service providers, the Exchange would not be able to operate and support the network and provide access to its Members and their customers. The Exchange did not allocate all of the SFTI and other service providers' expense toward the cost of providing the access services associated with the Proposed Access Fees, only the portions which
The Exchange believes it is reasonable to allocate the identified portion of the other hardware and software provider expense because this includes costs for dedicated hardware licenses for switches and servers, as well as dedicated software licenses for security monitoring and reporting across the network. Without this hardware and software, the Exchange would not be able to operate and support the network and provide access to its Members and their customers. The Exchange did not allocate all of the hardware and software provider expense toward the cost of providing the access services associated with the Proposed Access Fees, only the portions which the Exchange identified as being specifically mapped to providing the access services associated with the Proposed Access Fees, approximately 0.90% of the total applicable hardware and software provider expense. The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the access services associated with the Proposed Access Fees.
For 2021, total projected internal expense, relating to the internal costs of the Exchange to provide the access services associated with the Proposed Access Fees, is projected to be $856,918. This includes, but is not limited to, costs associated with: (1) Employee compensation and benefits for full-time employees that support the access services associated with the Proposed Access Fees, including staff in network operations, trading operations, development, system operations, business, as well as staff in general corporate departments (such as legal, regulatory, and finance) that support those employees and functions; (2) depreciation and amortization of hardware and software used to provide the access services associated with the Proposed Access Fees, including equipment, servers, cabling, purchased software and internally developed software used in the production environment to support the network for trading; and (3) occupancy costs for leased office space for staff that provide the access services associated with the Proposed Access Fees. The breakdown of these costs is more fully-described below. For clarity, only a portion of all such internal expenses are included in the internal expense herein, and no expense amount is allocated twice. Accordingly, the Exchange does not allocate its entire costs contained in those items to the access services associated with the Proposed Access Fees.
For clarity, and as stated above, the Exchange took a conservative approach in determining the expense and the percentage of that expense to be allocated to providing the access services in connection with the Proposed Access Fees. Only a portion of all such internal expenses are included in the internal expense herein, and no expense amount is allocated twice. Accordingly, the Exchange does not allocate its entire costs contained in those items to the access services associated with the Proposed Access Fees. This may result in the Exchange under allocating an expense to the provision of access services in connection with the Proposed Access Fees and such expenses may actually be higher or increase above what the Exchange utilizes within this proposal. Further, as part its ongoing assessment of costs and expenses (described above), the Exchange recently conducted a periodic thorough review of its expenses and resource allocations which, in turn, resulted in a revised percentage allocations in this filing.
The Exchange believes it is reasonable to allocate such internal expense described above towards the total cost to the Exchange to provide the access services associated with the Proposed Access Fees. In particular, the Exchange's employee compensation and benefits expense relating to providing the access services associated with the Proposed Access Fees is projected to be $783,513, which is only a portion of the $9,163,894 total projected expense for employee compensation and benefits. The Exchange believes it is reasonable to allocate the identified portion of such expense because this includes the time spent by employees of several departments, including Technology, Back Office, Systems Operations, Networking, Business Strategy Development (who create the business requirement documents that the Technology staff use to develop network features and enhancements), Trade Operations, Finance (who provide billing and accounting services relating to the network), and Legal (who provide legal services relating to the network, such as rule filings and various license agreements and other contracts). As part of the extensive cost review conducted by the Exchange, the Exchange reviewed the amount of time spent by each employee on matters relating to the provision of access services associated with the Proposed Access Fees. Without these employees, the Exchange would not be able to provide the access services associated with the Proposed Access Fees to its Members and their customers. The Exchange did not allocate all of the employee compensation and benefits expense toward the cost of the access services associated with the Proposed Access Fees, only the portions which the Exchange identified as being specifically mapped to providing the access services associated with the Proposed Access Fees, approximately 8.55% of the total applicable employee compensation and benefits expense. The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the access services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
The Exchange's depreciation and amortization expense relating to providing the access services associated with the Proposed Access Fees is projected to be $64,456, which is only a portion of the $2,864,716
The Exchange's occupancy expense relating to providing the access services associated with the Proposed Access Fees is projected to be $8,949, which is only a portion of the $497,180 total projected expense for occupancy. The Exchange believes it is reasonable to allocate the identified portion of such expense because such expense represents the portion of the Exchange's cost to rent and maintain a physical location for the Exchange's staff who operate and support the network, including providing the access services associated with the Proposed Access Fees. This amount consists primarily of rent for the Exchange's Princeton, New Jersey office, as well as various related costs, such as physical security, property management fees, property taxes, and utilities. The Exchange operates its Network Operations Center (“NOC”) and Security Operations Center (“SOC”) from its Princeton, New Jersey office location. A centralized office space is required to house the staff that operates and supports the network. The Exchange currently has approximately 200 employees. Approximately two-thirds of the Exchange's staff are in the Technology department, and the majority of those staff have some role in the operation and performance of the access services associated with the Proposed Access Fees. Without this office space, the Exchange would not be able to operate and support the network and provide the access services associated with the Proposed Access Fees to its Members and their customers. Accordingly, the Exchange believes it is reasonable to allocate the identified portion of its occupancy expense because such amount represents the Exchange's actual cost to house the equipment and personnel who operate and support the Exchange's network infrastructure and the access services associated with the Proposed Access Fees. The Exchange did not allocate all of the occupancy expense toward the cost of providing the access services associated with the Proposed Access Fees, only the portion which the Exchange identified as being specifically mapped to operating and supporting the network, approximately 1.80% of the total applicable occupancy expense. The Exchange believes this allocation is reasonable because it represents the Exchange's cost to provide the access services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
The Exchange notes that a material portion of its total overall expense is allocated to the provision of access services (including connectivity, ports, and trading permits). The Exchange believes this is reasonable and in line, as the Exchange operates a technology-based business that differentiates itself from its competitors based on its trading systems that rely on access to a high performance network, resulting in significant technology expense. Over two-thirds of Exchange staff are technology-related employees. The majority of the Exchange's expense is technology-based. As described above, the Exchange has only four primary sources of fees in to recover its costs, thus the Exchange believes it is reasonable to allocate a material portion of its total overall expense towards access fees.
Based on the above, the Exchange believes that its provision of access services associated with the Proposed Access Fees will not result in excessive pricing or supra-competitive profit. As discussed above, the Exchange projects that the annualized expense for 2021 to provide Full Service MEO Ports to be approximately $897,084 per annum or an average of $74,757 per month. The Exchange implemented the Proposed Access Fees on July 1, 2021 in the First Proposed Rule Change. For June 2021, prior to the Proposed Access Fees, Members and non-Members purchased a total of 20 Full Service MEO Ports, for which the Exchange charged a total of approximately $71,625. This resulted in a loss of $3,132 for that month (a margin of −4.37%). For the month of November 2021, which includes the Proposed Access Fees, Members and non-Members purchased a total of 19 Full Service MEO Ports, for which the Exchange charged a total of approximately $122,000 for that month. This resulted in a profit of $47,243 for that month, representing a profit margin of 38%. The Exchange believes that the Proposed Access Fees are reasonable because they are designed to generate an approximate profit margin of 38% per-month. The Exchange believes this modest profit margin will allow it to continue to recoup its expenses and continue to invest in its technology infrastructure. Therefore, the Exchange also believes that this proposed profit margin increase is reasonable because it represents a reasonable rate of return.
Again, the Exchange cautions that this profit margin may fluctuate from month to month based in the uncertainty of predicting how many Full Service MEO Ports may be purchased from month to month as Members and non-Members are free to add and drop ports at any time based on their own business decisions. This profit margin may also decrease due to the significant inflationary pressure on capital items that it needs to purchase to maintain the Exchange's technology and systems.
The Exchange believes it is reasonable, equitable and not unfairly discriminatory to allocate the respective percentages of each expense category described above towards the total cost to the Exchange of operating and supporting the network, including providing the access services associated with the Proposed Access Fees because the Exchange performed a line-by-line item analysis of nearly every expense of the Exchange, and has determined the expenses that directly relate to providing access to the Exchange. Further, the Exchange notes that, without the specific third-party and internal items listed above, the Exchange would not be able to provide the access services associated with the Proposed Access Fees to its Members and their customers. Each of these expense items, including physical hardware, software, employee compensation and benefits, occupancy costs, and the depreciation and amortization of equipment, have been identified through a line-by-line item analysis to be integral to providing access services. The Proposed Access Fees are intended to recover the Exchange's costs of providing access to Exchange Systems. Accordingly, the Exchange believes that the Proposed Access Fees are fair and reasonable because they do not result in excessive pricing or supra-competitive profit, when comparing the actual costs to the
The Exchange believes the proposed tiered-pricing structure is reasonable, fair, equitable, and not unfairly discriminatory because it is the model adopted by the Exchange when it launched operations for its Full Service MEO Port fees. Moreover, the tiered pricing structure for Full Service MEO Ports is not a new proposal and has been in place since 2018, well prior to the filing of the First Proposed Rule Change. The proposed tiers of Full Service MEO Port fees will continue to apply to all Members and non-Members in the same manner based upon the monthly total volume executed by a Member and its Affiliates on the Exchange across all origin types, not including Excluded Contracts, as compared to the TCV in all MIAX Pearl-listed options. Members and non-Members may choose to purchase more than the two Full Service MEO Ports the Exchange currently provides upfront based on their own business decisions and needs. All similarly situated Members and non-Members would be subject to the same fees. The fees do not depend on any distinction between Members and non-Members because they are solely determined by the individual Members' or non-Members' business needs and their impact on Exchange resources.
The proposed tiered-pricing structure is not unfairly discriminatory and provides for the equitable allocation of fees, dues, and other charges because it is designed to encourage Members and non-Members to be more efficient and economical when determining how to access the Exchange and the amount of the fees are based on the number of Full Service MEO Ports utilized, in addition to the amount of volume conducted on the Exchange. The proposed tiered pricing structure should also enable the Exchange to better monitor and provide access to the Exchange's network to ensure sufficient capacity and headroom in the System.
The proposed tiered-pricing structure is not unfairly discriminatory and provides for the equitable allocation of fees, dues, and other charges because the amount of the fee is directly related to the Member or non-Member's TCV resulting in higher fees for greater TCV. The higher the volume, the greater pull on Exchange resources. The Exchange's high performance network solutions and supporting infrastructure (including employee support), provides unparalleled system throughput and the capacity to handle approximately 10.7 million order messages per second. On an average day, the Exchange handles over approximately 2.7 billion total messages. However, in order to achieve a consistent, premium network performance, the Exchange must build out and maintain a network that has the capacity to handle the message rate requirements of its most heavy network consumers. These billions of messages per day consume the Exchange's resources and significantly contribute to the overall expense for storage and network transport capabilities.
There are material costs associated with providing the infrastructure and headcount to fully-support access to the Exchange. The Exchange incurs technology expense related to establishing and maintaining Information Security services, enhanced network monitoring and customer reporting, as well as Regulation SCI mandated processes, associated with its network technology. While some of the expense is fixed, much of the expense is not fixed, and thus increases as the services associated with the Proposed Access Fees increase. For example, new Members to the Exchange may require the purchase of additional hardware to support those Members as well as enhanced monitoring and reporting of customer performance that the Exchange and its affiliates provide. Further, as the total number of Members increases, the Exchange and its affiliates may need to increase their data center footprint and consume more power, resulting in increased costs charged by their third-party data center provider. Accordingly, the cost to the Exchange and its affiliates to provide access to its Members is not fixed. The Exchange believes the Proposed Access Fees are reasonable in order to offset a portion of the costs to the Exchange associated with providing access to its network infrastructure.
The Exchange notes that the firms that purchase more than two Full Service MEO Ports that the Exchange initially provides essentially do so for competitive reasons amongst themselves and choose to utilize numerous ports based on their business needs and desire to attempt to access the market quicker by using the port with the least amount of latency. These firms are generally engaged in sending liquidity removing orders to the Exchange and seek to add more ports so they can access resting liquidity ahead of their competitors. For instance, a Member may have just sent numerous messages and/or orders over one of their Full Service MEO Ports that are in queue to be processed. That same Member then seeks to enter an order to remove liquidity from the Exchange's Book. That Member may choose to send that order over one or more of their other Full Service MEO Ports with less message and/or order traffic to ensure that their liquidity taking order accesses the Exchange quicker because that port's queue is shorter. These firms also tend to frequently add and drop ports mid-month to determine which have the least latency, which results in increased costs to the Exchange to constantly make changes in the data center.
The firms that engage in the above-described liquidity removing and advanced trading strategies typically require more than two Full Service MEO Ports and, therefore, generate higher costs by utilizing more of the Exchange's resources. Those firms may also conduct other latency measurements over their ports and drop and simultaneously add ports mid-month based on their own assessment of their performance. This results in Exchange staff processing such requests, potentially purchasing additional equipment, and performing the necessary network engineering to replace those ports in the data center. Therefore, the Exchange believes it is equitable for these firms to experience increased port costs based on their disproportionate pull on Exchange resources to provide the additional ports.
In addition, the proposed tiered-pricing structure is equitable because it is designed to encourage Members and non-Members to be more efficient and economical when determining how to connect to the Exchange. Section 6(b)(5) of the Exchange Act requires the Exchange to provide access on terms that are not unfairly discriminatory.
The Exchange does not have visibility into other equities exchanges' costs to provide ports and port access or their fee markup over those costs, and therefore cannot use other exchanges' port fees as a benchmark to determine a reasonable markup over the costs of providing port access. Nevertheless, the Exchange believes the other exchanges' port fees are a useful example of alternative approaches to providing and charging for port access. To that end, the Exchange believes the proposed tiered-pricing structure for its Full Service MEO Ports is reasonable because the proposed highest tier is still less than or similar to fees charged for similar port access provided by other options exchanges with comparable market shares. For example, NASDAQ (equity options market share of 8.38% as of December 15, 2021 for the month of December)
In the each of the above cases, the Exchange's highest tiered port fee, as proposed, is similar to or less than the port fees of competing options exchanges with like market share. Further, as described in more detail below, many competing exchanges generate higher overall operating profit margins and higher “access fees” than the Exchange, inclusive of the projected revenues associated with the proposed fees. The Exchange believes that it provides a premium network experience to its Members and non-Members via a highly deterministic system, enhanced network monitoring and customer reporting, and a superior network infrastructure than markets with higher market shares and more expensive access fees. Each of the port fee rates in place at competing options exchanges were filed with the Commission for immediate effectiveness and remain in place today.
The Exchange further believes that the proposed fees are reasonable, equitably allocated and not unfairly discriminatory because, for the flat fee, the Exchange provides each Member two (2) Full Service MEO Ports for each matching engine to which that Member is connected. Unlike other options exchanges that provide similar port functionality and charge fees on a per port basis,
The Exchange does not believe that the proposed rule change would place certain market participants at the Exchange at a relative disadvantage compared to other market participants or affect the ability of such market participants to compete.
The Exchange believes that the Proposed Access Fees do not place certain market participants at a relative disadvantage to other market participants because the Proposed Access Fees do not favor certain categories of market participants in a manner that would impose a burden on competition; rather, the allocation of the Proposed Access Fees reflects the network resources consumed by the various size of market participants—lowest bandwidth consuming members pay the least, and highest bandwidth consuming members pays the most, particularly since higher bandwidth consumption translates to higher costs to the Exchange.
The Exchange believes the Proposed Access Fees do not place an undue burden on competition on other options exchanges that is not necessary or appropriate. In particular, options market participants are not forced to connect to (and purchase MEO Ports from) all options exchanges. The Exchange also notes that it has far less Members as compared to the much greater number of members at other options exchanges. Not only does MIAX Pearl have less than half the number of members as certain other options exchanges, but there are also a number of the Exchange's Members that do not connect directly to MIAX Pearl. There are a number of large users of the MEO Interface and broker-dealers that are members of other options exchange but not Members of MIAX Pearl. The Exchange is also unaware of any assertion that its existing fee levels or the Proposed Access Fees would somehow unduly impair its competition with other options exchanges. To the contrary, if the fees charged are deemed too high by market participants, they can simply disconnect.
The Exchange operates in a highly competitive market in which market participants can readily favor one of the 15 competing options venues if they deem fee levels at a particular venue to be excessive. Based on publicly-available information, and excluding index-based options, no single exchange has more than approximately 16% market share. Therefore, no exchange possesses significant pricing power in the execution of multiply-listed equity and ETF options order flow. Over the course of 2021, the Exchange's market share has fluctuated between approximately 3-6% of the U.S. equity options industry.
As described above, the Exchange received one comment letter on the First Proposed Rule Change
Until recently, the Exchange has operated at a net annual loss since it launched operations in 2017.
Therefore, a finding by the Commission that the Exchange has not met its burden to show that the proposed fee change is consistent with the Act would be different than the Commission's treatment of similar past filings, would create further ambiguity regarding the standards exchange fee changes should satisfy, and is not warranted here.
In addition, the arguments in the SIG Letter do not support their claim that the Exchange has not met its burden to show the proposed rule change is consistent with the Act. Prior to, and after submitting the First Proposed Rule Change, the Exchange solicited feedback from its Members, including SIG. SIG relayed their concerns regarding the proposed change. The Exchange then sought to work with SIG to address their concerns and gain a better understanding of the access/connectivity/quoting infrastructure of other exchanges. In response, SIG provided no substantive suggestions on how to amend the First Proposed Rule Change to address their concerns and instead chose to submit a comment letter. One could argue that SIG is using the comment letter process not to raise legitimate regulatory concerns regarding the proposal, but to inhibit or delay proposed fee changes by the Exchange.
Nonetheless, the Exchange has enhanced its cost and revenue analysis and data in this Third Proposed Rule Change to further justify that the Proposed Access Fees are reasonable in accordance with the Commission Staff's Guidance. Among other things, these enhancements include providing baseline information in the form of data from the month before the Proposed Access Fees became effective.
First, the SIG Letter states that 10Gb ULL “lines are critical to Exchange members to be competitive
The SIG Letter challenges the below two bases the Exchange set forth in its Initial Proposed Fee Change and herein to support the assertion that the proposal provides for the equitable allocation of reasonable dues, fees, and other charges:
• “If the Exchanges were to attempt to establish unreasonable pricing, then no market participant would join or connect to the Exchanges, and existing market participants would disconnect.
• The fees will not result in excessive pricing or supra-competitive profit.”
The Exchange responds to each of SIG's challenges in turn below.
SIG asserts that “the prospect that a member may withdraw from the Exchanges if a fee is too costly is not a basis for asserting that the fee is reasonable.”
Next, SIG asserts that the Exchange's “profit margin comparisons do not support the Exchange's claims that they will not realize a supracompetitive profit,” that “the Exchanges' respective profit margins of 30% (for MIAX and Pearl) and 51% (for Emerald) in relation to connectivity fees are high in any event,” and “comparisons to competing exchanges' overall operating profit margins are an inapt `apples-to-oranges' comparison.”
The Exchange has provided ample data that the proposed fees would not result in excessive pricing or a supra-competitive profit. In this Third
SIG challenges the proposed fees by arguing that “the Exchange[ ] provide[s] no support for [its] claim that [the] proposed tiered pricing structure is needed to encourage efficiency in connectivity usage and the Exchange[ ] provided no support for [the] claim that the tiered pricing structure allows them to better monitor connectivity usage, nor that this is an appropriate basis for the pricing structure in any event.” The tiered pricing structure for Full Service MEO Ports is not a new proposal and has been in place since 2018, well prior to the filing of the First Proposed Rule Change. Nonetheless, the Exchange provided additional justification to support that the Proposed Access Fees are equitable and not unfairly discriminatory above in response to SIG's assertions.
Nowhere in this proposal or in the First Proposed Rule Change did the Exchange assert that it benefits competition to allow a new exchange entrant to recoup their infrastructure costs. Rather, the Exchange asserts above that its “proposed fees are reasonable, equitably allocated and not unfairly discriminatory because the Exchange, and its affiliates, are still recouping the initial expenditures from building out their systems while the legacy exchanges have already paid for and built their systems.” The Exchange no longer makes this assertion in this filing and, therefore, does not believe is it necessary to respond to SIG's assertion here.
Nonetheless, the Exchange notes that until recently it has operated at a net annual loss since it launched operations in 2017.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing a proposal to amend the MIAX Pearl Options Fee Schedule (the “Fee Schedule”) to remove certain credits and amend the monthly Trading Permit
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the Fee Schedule to remove certain credits and amend the monthly Trading Permit fees (the “Proposed Access Fees”) for Exchange Members. The Exchange initially filed this proposal on July 1, 2021, with the proposed fee changes being immediately effective (“First Proposed Rule Change”).
The Exchange proposes to amend the Definitions section of the Fee Schedule to delete the definition and remove the credits applicable to the Monthly Volume Credit for Members. The Exchange established the Monthly Volume Credit in 2018
If a Member connects via both the MEO Interface and FIX Interface and qualifies for the Monthly Volume Credit based upon its Priority Customer volume, the greater Monthly Volume Credit shall apply to such Member. The Monthly Volume Credit is a single, once-per-month credit towards the aggregate monthly total of non-transaction fees assessable to a Member.
The Exchange now proposes to amend the Definitions section of the Fee Schedule to delete the definition and remove the Monthly Volume Credit. The Exchange established the Monthly Volume Credit when it first launched operations to attract order flow by lowering the initial fixed cost for Members. The Monthly Volume Credit has achieved its purpose and the Exchange now believes it is appropriate to remove this credit. The Exchange believes that the Exchange's existing Priority Customer rebates and fees will continue to allow the Exchange to remain highly competitive and continue to attract order flow and maintain market share.
The Exchange proposes to amend Section (3)(b) of the Fee Schedule to remove the Trading Permit fee credit that is denoted in footnote “*” below the Trading Permit fee table. The Trading Permit fee credit is applicable to Members that connect via both the MEO and FIX Interfaces. Currently, Members who connect via both the MEO and FIX Interfaces are assessed the rates for both types of Trading Permits, but these Members receive a $100 monthly credit towards the Trading Permit fees applicable to the MEO Interface. The Exchange now proposes to remove the Trading Permit fee credit and delete footnote “*” from Section (3)(b) of the Fee Schedule.
The Exchange established the Trading Permit fee credit when it first launched operations to attract order flow and increase membership by lowering the costs for Members that connect via both the MEO Interface and FIX Interface. The Trading Permit fee credit has achieved its purpose and the Exchange now believes that it is appropriate to remove this credit in light of the current operating conditions and membership population on the Exchange.
The Exchange proposes to amend Section (3)(b) of the Fee Schedule to increase the amount of the monthly Trading Permit fees. The Exchange issues Trading Permits to Members who are either Electronic Exchange Members
(i) If its volume falls within the parameters of Tier 1 of the Non-Transaction Fees Volume-Based Tiers, or volume up to 0.30%, $250;
(ii) if its volume falls within the parameters of Tier 2 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.30% up to 0.60%, $350; and
(iii) if its volume falls with the parameters of Tier 3 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.60%, $450.
Each Member who connects to the System via the MEO Interface is assessed the following monthly Trading Permit fees:
(i) If its volume falls within the parameters of Tier 1 of the Non-Transaction Fees Volume-Based Tiers, or volume up to 0.30%, $300;
(ii) if its volume falls within the parameters of Tier 2 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.30% up to 0.60%, $400; and
(iii) if its volume falls with the parameters of Tier 3 of the Non-Transaction Fees Volume-Based Tiers, or volume above 0.60%, $500.
(i) If its volume falls within the parameters of Tier 1 of the Non-Transaction Fees Volume-Based Tiers, $500;
(ii) if its volume falls within the parameters of Tier 2 of the Non-Transaction Fees Volume-Based Tiers, $1,000; and
(iii) if its volume falls with the parameters of Tier 3 of the Non-Transaction Fees Volume-Based Tiers, $1,500.
Each Member who connects to the System via the MEO Interface will be assessed the following monthly Trading Permit fees:
(i) If its volume falls within the parameters of Tier 1 of the Non-
(ii) if its volume falls within the parameters of Tier 2 of the Non-Transaction Fees Volume-Based Tiers, $4,000; and
(iii) if its volume falls with the parameters of Tier 3 of the Non-Transaction Fees Volume-Based Tiers, $6,000.
Members who use the MEO Interface may also connect to the System through the FIX Interface as well, and vice versa. The Exchange notes that the Trading Permit fees for Members who connect through the MEO Interface are higher than the Trading Permit fees for Members who connect through the FIX Interface, since the FIX Interface utilizes less capacity and resources of the Exchange. The MEO Interface offers lower latency and higher throughput, which utilizes greater capacity and resources of the Exchange. The FIX Interface offers lower bandwidth requirements and an industry-wide uniform message format. Both EEMs and Market Makers may connect to the Exchange using either interface.
Trading Permits grant access to the Exchange, thus providing the ability to submit orders and trade on the Exchange, in the manner defined in the relevant Trading Permit. Without a Trading Permit, a Member cannot directly trade on the Exchange. Therefore, a Trading Permit is a means to directly access the Exchange (which offers meaningful value), and the Exchange now proposes to increase its monthly fees since it has not done so since the fees were first adopted in 2018
As illustrated by the table below, the Exchange notes that the proposed increased fees for the Exchange's Trading Permits are in line with, or cheaper than, the similar trading permits and access fees for similar membership fees charged by other options exchanges. The below table also illustrates how the Exchange has historically undercharged for access via Trading Permits as compared to other options exchanges. The Exchange believes other exchange's access and trading permit fees are useful examples of alternative approaches to providing and charging for access and provides the below table for comparison purposes only to show how the Exchange's proposed fees compare to fees currently charged by other options exchanges for similar access.
The proposed fees are immediately effective.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes its proposal to remove the Monthly Volume Credit is reasonable, equitable and not unfairly discriminatory because all market participants will no longer be offered the ability to achieve the extra credits associated with the Monthly Volume Credit for submitting Priority Customer volume to the Exchange and access to the Exchange is offered on terms that are not unfairly discriminatory. The Exchange believes it is equitable and not unfairly discriminatory to remove the Monthly Volume Credit from the Fee Schedule for business and competitive reasons because, in order to attract order flow when the Exchange first launched operations, the Exchange established the Monthly Volume Credit to lower the initial fixed cost for Members. The Exchange now believes that it is appropriate to remove this credit in light of the current operating conditions and the current type and amount of Priority Customer volume executed on the Exchange. The Exchange believes that the Exchange's Priority Customer rebates and fees will still allow the Exchange to remain highly competitive such that the Exchange should continue to attract order flow and maintain market share.
The Exchange believes its proposal to remove the Trading Permit fee credit for Members that connect via both the MEO Interface and FIX Interface is reasonable, equitable and not unfairly discriminatory because all market participants will no longer be offered the ability to receive the credit and access to the Exchange is offered on terms that are not unfairly discriminatory. The Exchange believes it is equitable and not unfairly discriminatory to remove the Trading Permit fee credit for business and competitive reasons because, in order to attract order flow and membership after the Exchange first launched operations, the Exchange established the Trading Permit fee credit to lower the costs for Members that connect via both the MEO Interface and FIX Interface. The Exchange now believes that it is appropriate to remove this credit in light of the current operating conditions and membership on the Exchange.
On March 29, 2019, the Commission issued its Order Disapproving Proposed Rule Changes to Amend the Fee Schedule on the BOX Market LLC Options Facility to Establish BOX Connectivity Fees for Participants and Non-Participants Who Connect to the BOX Network (the “BOX Order”).
The Exchange believes that exchanges, in setting fees of all types, should meet very high standards of transparency to demonstrate why each new fee or fee increase meets the requirements of the Act that fees are reasonable, equitably allocated, not unfairly discriminatory, and not create an undue burden on competition among market participants. The Exchange believes this high standard is especially important when an exchange imposes various access fees for market participants to access an exchange's marketplace. The Exchange deems the Trading Permit fees to be access fees. It records these fees as part of its “Access Fees” revenue in its financial statements.
In its Guidance, the Commission Staff stated that, “[a]s an initial step in assessing the reasonableness of a fee, staff considers whether the fee is constrained by significant competitive forces.”
The Guidance defines “supra-competitive profit” as “profits that exceed the profits that can be obtained in a competitive market.”
Based on this analysis, the Exchange believes the Proposed Access Fees are reasonable and do not result in a “supra-competitive”
The Proposed Access Fees are based on a cost-plus model. In determining the appropriate fees to charge, the Exchange considered its costs to provide the services associated with Trading Permits, using what it believes to be a conservative methodology (
To determine the Exchange's costs to provide the access services associated with the Proposed Access Fees, the Exchange conducted an extensive cost review in which the Exchange analyzed nearly every expense item in the Exchange's general expense ledger to determine whether each such expense relates to the Proposed Access Fees, and, if such expense did so relate, what portion (or percentage) of such expense actually supports the access services. The sum of all such portions of expenses represents the total cost of the Exchange to provide the access services associated with the Proposed Access Fees.
The Exchange also provides detailed information regarding the Exchange's cost allocation methodology—namely, information that explains the Exchange's rationale for determining that it was reasonable to allocate certain expenses described in this filing towards the cost to the Exchange to provide the access services associated with the Proposed Access Fees. The Exchange conducted a thorough internal analysis to determine the portion (or percentage) of each expense to allocate to the support of access services associated with the Proposed Access Fees. This analysis included discussions with each Exchange department head to determine the expenses that support access services associated with the Proposed Access Fees. Once the expenses were identified, the Exchange department heads, with the assistance of the Exchange's internal finance department, reviewed such expenses holistically on an Exchange-wide level to determine what portion of that expense supports providing access services for the Proposed Access Fees. The sum of all such portions of expenses represents the total cost to the Exchange to provide access services associated with the Proposed Access Fees. For the avoidance of doubt, no expense amount was allocated twice.
To determine the Exchange's projected revenues associated with the Proposed Access Fees, the Exchange analyzed the number of Members currently utilizing Trading Permits, and, utilizing a recent monthly billing cycle representative of 2021 monthly revenue, extrapolated annualized revenue on a going-forward basis. The Exchange does not believe it is appropriate to factor into its analysis future revenue growth or decline into its projections for purposes of these calculations, given the uncertainty of such projections due to the continually changing access needs of market participants, discounts that can be achieved due to lower trading volume and vice versa, market participant consolidation, etc. Additionally, the Exchange similarly does not factor into its analysis future cost growth or decline. The Exchange is presenting its revenue and expense associated with the Proposed Access Fees in this filing in a manner that is consistent with how the Exchange presents its revenue and expense in its Audited Unconsolidated Financial Statements. The Exchange's most recent Audited Unconsolidated Financial Statement is for 2020. However, since the revenue and expense associated with the Proposed Access Fees were not in place in 2020 or for the majority of 2021 (other than July and August 2021), the Exchange believes its 2020 Audited Unconsolidated Financial Statement is not representative of its current total annualized revenue and costs associated with the Proposed Access Fees. Accordingly, the Exchange believes it is more appropriate to analyze the Proposed Access Fees utilizing its 2021 revenue and costs, as described herein, which utilize the same presentation methodology as set forth in the Exchange's previously-issued Audited Unconsolidated Financial Statements. Based on this analysis, the Exchange believes that the Proposed Access Fees are fair and reasonable because they will not result in excessive pricing or supra-competitive profit when comparing the Exchange's total annual expense associated with providing the services associated with the Proposed Access Fees versus the total projected annual revenue the Exchange will collect for providing those services. The Exchange notes that this is the same justification process utilized by the Exchange's affiliate, MIAX Emerald, in a filing recently noticed and not suspended by the Commission when MIAX Emerald adopted trading permit fees.
The Exchange has been subject to price increases upwards of 30% on network equipment due to supply chain shortages. This, in turn, results in higher overall costs for ongoing system maintenance, but also to purchase the items necessary to ensure ongoing system resiliency, performance, and determinism. These costs are expected to continue to go up as the U.S. economy continues to struggle with supply chain and inflation related issues.
As mentioned above, the Exchange projects that the annualized expense for 2021 to provide the services associated with the Proposed Access Fees to be approximately $844,741 per annum or an average of $70,395 per month and that these costs are expected to increase not only due to anticipated significant inflationary pressure, but also periodic fee increases by third parties.
The Exchange only has four primary sources of revenue and cost recovery mechanisms: Transaction fees, access fees (which includes the Proposed Access Fees), regulatory fees, and market data fees. Accordingly, the Exchange must cover all of its expenses from these four primary sources of revenue and cost recovery mechanisms. Until recently, the Exchange has operated at a cumulative net annual loss since it launched operations in 2017.
The Exchange believes that the Proposed Access Fees are fair and reasonable because they will not result in excessive pricing or supra-competitive profit, when comparing the total annual expense that the Exchange projects to incur in connection with providing these access services versus the total annual revenue that the Exchange projects to collect in connection with services associated with the Proposed Access Fees. For 2021,
As discussed, the Exchange conducted an extensive cost review in which the Exchange analyzed nearly every expense item in the Exchange's general expense ledger (this includes over 150 separate and distinct expense items) to determine whether each such expense relates to the access services associated with the Proposed Access Fees, and, if such expense did so relate, what portion (or percentage) of such expense actually supports those services, and thus bears a relationship that is, “in nature and closeness,” directly related to those services. The sum of all such portions of expenses represents the total cost of the Exchange to provide access services associated with the Proposed Access Fees.
For 2021, total third-party expense, relating to fees paid by the Exchange to third-parties for certain products and services for the Exchange to be able to provide the access services associated with the Proposed Access Fees, is projected to be $188,815. This includes, but is not limited to, a portion of the fees paid to: (1) Equinix, for data center services, for the primary, secondary, and disaster recovery locations of the Exchange's trading system infrastructure; (2) Zayo Group Holdings, Inc. (“Zayo”) for network services (fiber and bandwidth products and services) linking the Exchange's office locations in Princeton, New Jersey and Miami, Florida, to all data center locations; (3) Secure Financial Transaction Infrastructure (“SFTI”),
For clarity, the Exchange took a conservative approach in determining the expense and the percentage of that expense to be allocated to the providing access services in connection with the Proposed Access Fees. Only a portion of all fees paid to such third-parties is included in the third-party expense herein, and no expense amount is allocated twice. Accordingly, the Exchange does not allocate its entire information technology and communication costs to the access services associated with the Proposed Access Fees. This may result in the Exchange under allocating an expense to the provision of access services in connection with the Proposed Access Fees and such expenses may actually be higher or increase above what the Exchange utilizes within this proposal. Further, the Exchange notes that, with respect to the MIAX Pearl expenses included herein, those expenses only cover the MIAX Pearl options market; expenses associated with the MIAX Pearl equities market are accounted for separately and are not included within the scope of this filing. As noted above, the percentage allocations used in this proposed rule change may differ from past filings from the Exchange or its affiliates due to, among other things, changes in expenses charged by third-parties, adjustments to internal resource allocations, and different system architecture of the Exchange as compared to its affiliates. Further, as part its ongoing assessment of costs and expenses, the Exchange recently conducted a periodic thorough review of its expenses and resource allocations which, in turn, resulted in a revised percentage allocations in this filing. Therefore, the percentage allocations used in this proposed rule change may differ from past filings from the Exchange or its affiliates due to, among other things, changes in expenses charged by third-parties, adjustments to internal resource allocations, and different system architecture of the Exchange as compared to its affiliates.
The Exchange believes it is reasonable to allocate such third-party expense described above towards the total cost to the Exchange to provide the access services associated with the Proposed Access Fees. In particular, the Exchange believes it is reasonable to allocate the identified portion of the Equinix expense because Equinix operates the data centers (primary, secondary, and disaster recovery) that host the Exchange's network infrastructure. This includes, among other things, the necessary storage space, which continues to expand and increase in cost, power to operate the network infrastructure, and cooling apparatuses to ensure the Exchange's network infrastructure maintains stability. Without these services from Equinix, the Exchange would not be able to operate and support the network and provide the access services associated with the Proposed Access Fees to its Members and their customers. The Exchange did not allocate all of the Equinix expense toward the cost of providing the access services associated with the Proposed Access Fees, only that portion which the Exchange identified as being specifically mapped to providing the access services associated with the Proposed Access Fees, approximately 8% of the total applicable Equinix expense. The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the access services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
The Exchange believes it is reasonable to allocate the identified portion of the Zayo expense because Zayo provides the internet, fiber and bandwidth connections with respect to the network, linking the Exchange with its affiliates, MIAX and MIAX Emerald, as well as the data center and disaster
The Exchange believes it is reasonable to allocate the identified portions of the SFTI expense and various other service providers' (including Thompson Reuters, NYSE, Nasdaq, and Internap) expense because those entities provide connectivity and feeds for the entire U.S. options industry, as well as the content, connectivity services, and infrastructure services for critical components of the network. Without these services from SFTI and various other service providers, the Exchange would not be able to operate and support the network and provide access to its Members and their customers. The Exchange did not allocate all of the SFTI and other service providers' expense toward the cost of providing the access services associated with the Proposed Access Fees, only the portions which the Exchange identified as being specifically mapped to providing the access services associated with the Proposed Access Fees, approximately 3% of the total applicable SFTI and other service providers' expense. The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the access services associated with the Proposed Access Fees.
The Exchange believes it is reasonable to allocate the identified portion of the other hardware and software provider expense because this includes costs for dedicated hardware licenses for switches and servers, as well as dedicated software licenses for security monitoring and reporting across the network. Without this hardware and software, the Exchange would not be able to operate and support the network and provide access to its Members and their customers. The Exchange did not allocate all of the hardware and software provider expense toward the cost of providing the access services associated with the Proposed Access Fees, only the portions which the Exchange identified as being specifically mapped to providing the access services associated with the Proposed Access Fees, approximately 5% of the total applicable hardware and software provider expense. The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the access services associated with the Proposed Access Fees.
For 2021, total projected internal expense, relating to the internal costs of the Exchange to provide the access services associated with the Proposed Access Fees, is projected to be $655,925. This includes, but is not limited to, costs associated with: (1) Employee compensation and benefits for full-time employees that support the access services associated with the Proposed Access Fees, including staff in network operations, trading operations, development, system operations, business, as well as staff in general corporate departments (such as legal, regulatory, and finance) that support those employees and functions; (2) depreciation and amortization of hardware and software used to provide the access services associated with the Proposed Access Fees, including equipment, servers, cabling, purchased software and internally developed software used in the production environment to support the network for trading; and (3) occupancy costs for leased office space for staff that provide the access services associated with the Proposed Access Fees. The breakdown of these costs is more fully-described below. For clarity, only a portion of all such internal expenses are included in the internal expense herein, and no expense amount is allocated twice. Accordingly, the Exchange does not allocate its entire costs contained in those items to the access services associated with the Proposed Access Fees.
For clarity, and as stated above, the Exchange took a conservative approach in determining the expense and the percentage of that expense to be allocated to providing the access services in connection with the Proposed Access Fees. Only a portion of all such internal expenses are included in the internal expense herein, and no expense amount is allocated twice. Accordingly, the Exchange does not allocate its entire costs contained in those items to the access services associated with the Proposed Access Fees. This may result in the Exchange under allocating an expense to the provision of access services in connection with the Proposed Access Fees and such expenses may actually be higher or increase above what the Exchange utilizes within this proposal. Further, as part its ongoing assessment of costs and expenses (described above), the Exchange recently conducted a periodic thorough review of its expenses and resource allocations which, in turn, resulted in a revised percentage allocations in this filing.
The Exchange believes it is reasonable to allocate such internal expense described above towards the total cost to the Exchange to provide the access services associated with the Proposed Access Fees. In particular, the Exchange's employee compensation and benefits expense relating to providing the access services associated with the Proposed Access Fees is projected to be $549,834, which is only a portion of the $9,163,894 total projected expense for employee compensation and benefits. The Exchange believes it is reasonable to allocate the identified portion of such expense because this includes the time spent by employees of several departments, including Technology, Back Office, Systems Operations, Networking, Business Strategy Development (who create the business requirement documents that the Technology staff use to develop network features and enhancements), Trade Operations, Finance (who provide billing and accounting services relating to the network), and Legal (who provide legal services relating to the network, such as rule filings and various license agreements and other contracts). As part of the extensive cost review conducted by the Exchange, the Exchange reviewed the amount of time spent by each employee on matters relating to the provision of access services associated with the Proposed Access Fees. Without these employees, the Exchange would not be able to provide the access services associated with the Proposed Access Fees to its Members and their customers. The Exchange did not allocate all of the employee compensation and benefits expense toward the cost of the access services associated with the Proposed Access Fees, only the portions which the Exchange identified as being
The Exchange's depreciation and amortization expense relating to providing the access services associated with the Proposed Access Fees is projected to be $66,316, which is only a portion of the $1,326,325 total projected expense for depreciation and amortization. The Exchange believes it is reasonable to allocate the identified portion of such expense because such expense includes the actual cost of the computer equipment, such as dedicated servers, computers, laptops, monitors, information security appliances and storage, and network switching infrastructure equipment, including switches and taps that were purchased to operate and support the network and provide the access services associated with the Proposed Access Fees. Without this equipment, the Exchange would not be able to operate the network and provide the access services associated with the Proposed Access Fees to its Members and their customers. The Exchange did not allocate all of the depreciation and amortization expense toward the cost of providing the access services associated with the Proposed Access Fees, only the portion which the Exchange identified as being specifically mapped to providing the access services associated with the Proposed Access Fees, approximately 5% of the total applicable depreciation and amortization expense, as these access services would not be possible without relying on such. The Exchange believes this allocation is reasonable because it represents the Exchange's actual cost to provide the access services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
The Exchange's occupancy expense relating to providing the access services associated with the Proposed Access Fees is projected to be $39,775, which is only a portion of the $497,180 total projected expense for occupancy. The Exchange believes it is reasonable to allocate the identified portion of such expense because such expense represents the portion of the Exchange's cost to rent and maintain a physical location for the Exchange's staff who operate and support the network, including providing the access services associated with the Proposed Access Fees. This amount consists primarily of rent for the Exchange's Princeton, New Jersey office, as well as various related costs, such as physical security, property management fees, property taxes, and utilities. The Exchange operates its Network Operations Center (“NOC”) and Security Operations Center (“SOC”) from its Princeton, New Jersey office location. A centralized office space is required to house the staff that operates and supports the network. The Exchange currently has approximately 200 employees. Approximately two-thirds of the Exchange's staff are in the Technology department, and the majority of those staff have some role in the operation and performance of the access services associated with the proposed Trading Permit fees. Without this office space, the Exchange would not be able to operate and support the network and provide the access services associated with the Proposed Access Fees to its Members and their customers. Accordingly, the Exchange believes it is reasonable to allocate the identified portion of its occupancy expense because such amount represents the Exchange's actual cost to house the equipment and personnel who operate and support the Exchange's network infrastructure and the access services associated with the Proposed Access Fees. The Exchange did not allocate all of the occupancy expense toward the cost of providing the access services associated with the Proposed Access Fees, only the portion which the Exchange identified as being specifically mapped to operating and supporting the network, approximately 8% of the total applicable occupancy expense. The Exchange believes this allocation is reasonable because it represents the Exchange's cost to provide the access services associated with the Proposed Access Fees, and not any other service, as supported by its cost review.
The Exchange notes that a material portion of its total overall expense is allocated to the provision of access services (including connectivity, ports, and trading permits). The Exchange believes this is reasonable and in line, as the Exchange operates a technology-based business that differentiates itself from its competitors based on its trading systems that rely on access to a high performance network, resulting in significant technology expense. Over two-thirds of Exchange staff are technology-related employees. The majority of the Exchange's expense is technology-based. As described above, the Exchange has only four primary sources of fees to recover its costs, thus the Exchange believes it is reasonable to allocate a material portion of its total overall expense towards access fees.
Based on the above, the Exchange believes that its provision of access services associated with the Proposed Access Fees will not result in excessive pricing or supra-competitive profit. As described above, the Exchange projects that the annualized expense for 2021 to provide the services associated with Trading Permit to be approximately $844,741 per annum or an average of $70,395 per month. The Exchange implemented the Proposed Access Fees on July 1, 2021 in the First Proposed Rule Change. For June 2021, prior to the Proposed Access Fees, Members and non-Members purchased a total of 48 Trading Permits, for which the Exchange charged a total of $15,500. This resulted in a loss of $54,895 for that month (a margin of -354%). For the month of November 2021, which includes the Proposed Access Fees, Members and non-Members purchased a total of 47 Trading Permits,
Again, the Exchange cautions that this profit margin may fluctuate from month to month based in the uncertainty of predicting how many Trading Permits may be purchased from month to month as Members and non-Members are free to add and drop permits at any time based on their own business decisions. This profit margin may also decrease due to the significant inflationary pressure on capital items that it needs to purchase to maintain the Exchange's
The Exchange believes it is reasonable, equitable and not unfairly discriminatory to allocate the respective percentages of each expense category described above towards the total cost to the Exchange of operating and supporting the network, including providing the access services associated with the Proposed Access Fees because the Exchange performed a line-by-line item analysis of nearly every expense of the Exchange, and has determined the expenses that directly relate to providing access to the Exchange. Further, the Exchange notes that, without the specific third-party and internal items listed above, the Exchange would not be able to provide the access services associated with the Proposed Access Fees to its Members and their customers. Each of these expense items, including physical hardware, software, employee compensation and benefits, occupancy costs, and the depreciation and amortization of equipment, have been identified through a line-by-line item analysis to be integral to providing access services. The Proposed Access Fees are intended to recover the Exchange's costs of providing access to Exchange Systems. Accordingly, the Exchange believes that the Proposed Access Fees are fair and reasonable because they do not result in excessive pricing or supra-competitive profit, when comparing the actual costs to the Exchange versus the projected annual revenue from the Proposed Access Fees.
The Exchange believes the proposed tiered-pricing structure is reasonable, fair, equitable, and not unfairly discriminatory because it is the model adopted by the Exchange when it launched operations for its Trading Permit fees. Moreover, the tiered pricing structure for Trading Permits is not a new proposal and has been in place since 2018, well prior to the filing of the First Proposed Rule Change. The proposed tiers of Trading Permit fees will continue to apply to all Members and non-Members in the same manner based upon the monthly total volume executed by a Member and its Affiliates on the Exchange across all origin types, not including Excluded Contracts, as compared to the TCV in all MIAX Pearl-listed options. Members and non-Members may choose to purchase more than the one Trading Permit based on their own business decisions and needs. All similarly situated Members and non-Members would be subject to the same fees. The fees do not depend on any distinction between Members and non-Members because they are solely determined by the individual Members' or non-Members' business needs and their impact on Exchange resources.
The proposed tiered-pricing structure is not unfairly discriminatory and provides for the equitable allocation of fees, dues, and other charges because it is designed to encourage Members and non-Members to be more efficient and economical when determining how to access the Exchange and the amount of the fees are based on the number of Trading Permits utilized using the FIX and MEO Interfaces, in addition to the amount of volume conducted on the Exchange. The proposed tiered pricing structure should also enable the Exchange to better monitor and provide access to the Exchange's network to ensure sufficient capacity and headroom in the System.
The proposed tiered-pricing structure is not unfairly discriminatory and provides for the equitable allocation of fees, dues, and other charges because the amount of the fee is directly related to the Member or non-Member's TCV resulting in higher fees for greater TCV. The higher the volume, the greater pull on Exchange resources. The Exchange's high performance network solutions and supporting infrastructure (including employee support), provides unparalleled system throughput and the capacity to handle approximately 10.7 million order messages per second. On an average day, the Exchange handles over approximately 2.7 billion total messages. However, in order to achieve a consistent, premium network performance, the Exchange must build out and maintain a network that has the capacity to handle the message rate requirements of its most heavy network consumers. These billions of messages per day consume the Exchange's resources and significantly contribute to the overall expense for storage and network transport capabilities.
There are material costs associated with providing the infrastructure and headcount to fully-support access to the Exchange. The Exchange incurs technology expense related to establishing and maintaining Information Security services, enhanced network monitoring and customer reporting, as well as Regulation SCI mandated processes, associated with its network technology. While some of the expense is fixed, much of the expense is not fixed, and thus increases as the services associated with the Proposed Access Fees increase. For example, new Members to the Exchange may require the purchase of additional hardware to support those Members as well as enhanced monitoring and reporting of customer performance that the Exchange and its affiliates provide. Further, as the total number of Members increases, the Exchange and its affiliates may need to increase their data center footprint and consume more power, resulting in increased costs charged by their third-party data center provider. Accordingly, the cost to the Exchange and its affiliates to provide access to its Members is not fixed. The Exchange believes the Proposed Access Fees are reasonable in order to offset a portion of the costs to the Exchange associated with providing access to its network infrastructure.
The Exchange does not have visibility into other equities exchanges' costs to provide access or their fee markup over those costs, and therefore cannot use other exchanges' membership and access fees as a benchmark to determine a reasonable markup over the costs of providing the services associated with the Proposed Access Fees. Nevertheless, the Exchange believes the other exchanges' membership and participation fees are a useful example of alternative approaches to providing and charging for similar types of access. To that end, the Exchange believes the proposed tiered-pricing structure for its
In each
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes that the Proposed Access Fees do not place certain market participants at a relative disadvantage to other market participants because the Proposed Access Fees do not favor certain categories of market participants in a manner that would impose a burden on competition; rather, the fee rates are designed in order to provide objective criteria for users that connect via the MEO Interface of different sizes and business models that best matches their activity on the Exchange.
The Exchange believes the removal of the Monthly Volume Credit and Trading Permit fee credit will not place certain market participants at a relative disadvantage to other market participants because, in order to attract order flow when the Exchange first launched operations, the Exchange established these credits to lower the initial fixed cost for Members. The Exchange now believes that it is appropriate to remove this credit in light of the current operating conditions, including the Exchange's overall membership and the current type and amount of volume executed on the Exchange. The Exchange believes that the Exchange's rebates and fees will still allow the Exchange to remain highly competitive such that the Exchange
The Exchange believes the Proposed Access Fees do not place an undue burden on competition on other options exchanges that is not necessary or appropriate. In particular, options market participants are not forced to become members of all options exchanges. The Exchange notes that it has far less Members as compared to the much greater number of members at other options exchanges. There are a number of large users that connect via the MEO Interface and broker-dealers that are members of other options exchange but not Members of the Exchange. The Exchange is also unaware of any assertion that its existing fee levels or the Proposed Access Fees would somehow unduly impair its competition with other options exchanges. To the contrary, if the fees charged are deemed too high by market participants, they can simply discontinue their membership with the Exchange.
The Exchange operates in a highly competitive market in which market participants can readily favor one of the 15 competing options venues if they deem fee levels at a particular venue to be excessive. Based on publicly-available information, and excluding index-based options, no single exchange has more than approximately 16% market share. Therefore, no exchange possesses significant pricing power in the execution of multiply-listed equity and ETF options order flow. Over the course of 2021, the Exchange's market share has fluctuated between approximately 3-6% of the U.S. equity options industry.
As described above, the Exchange received one comment letter on the First Proposed Rule Change
Until recently, the Exchange has operated at a net annual loss since it launched operations in 2017.
In addition, the arguments in the SIG Letter do not support their claim that the Exchange has not met its burden to show the proposed rule change is consistent with the Act. Prior to and after submitting the First Proposed Rule Change, the Exchange solicited feedback from its Members, including SIG. SIG relayed their concerns regarding the proposed change. The Exchange then sought to work with SIG to address their concerns and gain a better understanding of the access/connectivity/quoting infrastructure of other exchanges. In response, SIG provided no substantive suggestions on how to amend the First Proposed Rule Change to address their concerns and instead chose to submit a comment letter. One could argue that SIG is using the comment letter process not to raise legitimate regulatory concerns regarding the proposal, but to inhibit or delay proposed fee changes by the Exchange. Nonetheless, the Exchange has further enhanced its cost and revenue analysis and data in this Third Proposed Rule Change to further justify that the Proposed Access Fees are reasonable in accordance with the Commission Staff's Guidance. Among other things, these enhancements include providing baseline information in the form of data from the month before the Proposed Access Fees became effective.
The SIG Letter asserts that the Exchange provided “no affirmative justifiable reason that its legacy fees are no longer sufficient.”
As a new entrant in the market, the Exchange chose to forgo any potential additional revenue that may have been generated by higher Trading Permit fees to encourage participation on the new platform. This served to attract participation on the Exchange so market participants could evaluate the Exchange's quality, technology and the quality of their overall customer/user experience. Setting higher rates for non-transaction fees could have served to dissuade market participants from trading on the Exchange and not experiencing the high quality technological system the Exchange built.
Nonetheless, the Exchange provided significant cost based justification for the proposed fees not only in this filing, but also in the First and Second Proposed Rule Changes. The SIG Letter conveniently ignores this fact. In fact, the level of disclosure by the Exchange provided in this filing and the First and Second Proposed Rule Changes has been worked on with Commission Staff over numerous past filings that have been published for comment and remain effect.
The Exchange believes the proposed fees will allow the Exchange to offset expenses the Exchange has and will incur, and that the Exchange provided sufficient transparency into how the Exchange determined to charge such fees. Accordingly, the Exchange provided an analysis of its revenues, costs, and profitability associated with the proposed fees. This analysis included information regarding its methodology for determining the costs and revenues associated with the proposal.
To determine the Exchange's costs to provide the access services associated with the proposed fees, the Exchange conducted an extensive cost review in which the Exchange analyzed nearly every expense item in the Exchange's general expense ledger to determine whether each such expense relates to the proposed fees, and, if such expense did so relate, what portion (or percentage) of such expense actually
Furthermore, the Exchange is beginning to see significant inflationary pressure on capital items that it needs to purchase to maintain the Exchange's technology and systems.
The SIG Letter correctly notes that the proposed Trading Permit fees are higher for Members who connect through the MEO Interface than for Members who connect through the FIX Interface. Members who use the MEO Interface may also connect to the System through the FIX Interface as well, and vice versa. The Exchange notes that the Trading Permit fees for Members who connect through the MEO Interface are higher than the Trading Permit fees for Members who connect through the FIX Interface, since the FIX Interface utilizes less capacity and resources of the Exchange. The MEO Interface offers lower latency and higher throughput, which utilizes greater capacity and resources of the Exchange. The FIX Interface offers lower bandwidth requirements and an industry-wide uniform message format. Both EEMs and Market Makers may connect to the Exchange using either interface.
The SIG Letter asserts that the Exchange “provides no description of the `capacity and resources' being utilized, and no information on the nature or extent of the disparity in such utilization between the two Interface types.” As a MEO user, SIG is uniquely positioned to understand and appreciate the differences between the MEO and FIX interfaces and why rates for the MEO interface are justifiably higher. Nonetheless, the Exchange is providing the below additional data to address the statements made in the SIG Letter.
Orders on the Exchange are supplied by Members via two different interfaces, FIX and MEO. MEO is the Exchange's proprietary binary order interface. Over the period from April 2021 until September 2021, 3.15 billion messages were processed via the FIX interface (0.43% of total messages received). Over that same time period, 731.4 billion messages (99.57% of total messages received) were processed over the MEO interface. Also, the MEO interface allows for mass purging of orders which has a significant impact on the number of messages processed. This marked difference between the number of FIX and MEO messages processed, when mapped to servers, software, storage, and networking results in a much higher allocation of total capital and operational expense to support the MEO interface. For one, the Exchange incurs greater expense in maintaining the resilience of the MEO interface to ensure its ongoing operation in accordance with Regulation SCI. Another, the Exchange must purchase and expand its storage capacity to retain these increased messages in compliance with its record keeping obligations. As noted above, the Exchange has seen significant inflationary pressure on capital items that it needs to purchase to maintain its technology.
SIG is also uniquely positioned to know that the fee structure utilized by the Exchange, which charges different Trading Permit fees for MEO interface users than FIX interface users is not a new proposal. In fact, it was first adopted by the Exchange over 3
The Exchange correctly asserts herein and in the Initial Proposed Fee Change that it's proposed Trading Permit fees “are in line with, or cheaper than, the trading permit fees or similar membership fees charged by other options exchanges.” The SIG letter challenges this assertion is an “apples to oranges” comparison because NYSE American and NYSE Arca based their rates on the number of options issued to the member and not trading volume, like the exchange does. In fact, the number of options traded by a member of NYSE American or NYSE Arca is an appropriate proxy for trading volume as the more options issued to the member would result in higher volumes traded by that member. Firms that trade more liquid options generate increased message traffic and greater pull on exchange resources. Therefore, comparing options traded to trading volume is an “apples to apples” comparison.
The Exchange proposes a range of fees from $500 to $6,000 per month depending on trading volume and the type of interface that is utilized by the Member. These rates are undoubtedly similar to or lower than the rates charged by NYSE Arca and NYSE American. As of December 20, 2021, the Exchange maintained a market share of approximately 4.03%.
The SIG Letter states that “[the Exchange] offers no information about the capacity and resource costs of access to the other exchanges or any other basis to support the reasonability of those fees, let alone compare such costs to those of MIAX Pearl.”
The SIG Letter further asserts that the Exchange “has not established that the other exchange fees are reasonable, nor that this would mean that the MIAX Pearl fees are reasonable as well.
The Exchange has provided ample data that the proposed fees would not result in excessive pricing or a supra-competitive profit. In this Third Proposed Rule Change, the Exchange no longer utilizes a comparison of its profit margin to that of other options exchanges as a basis that the Proposed Access Fees are reasonable. Rather, the Exchange has enhanced its cost and revenue analysis and data in this Third Proposed Rule Change to further justify that the Proposed Access Fees are reasonable in accordance with the Commission Staff's Guidance. Therefore, the Exchange believes it is no longer necessary to respond to this portion of the SIG Letter.
Nowhere in this proposal or in the First Proposed Rule Change did the Exchange assert that it benefits competition to allow a new exchange entrant to recoup their infrastructure costs. Rather, the Exchange asserts above that its “proposed fees are reasonable, equitably allocated and not unfairly discriminatory because the Exchange, and its affiliates, are still recouping the initial expenditures from building out their systems while the legacy exchanges have already paid for and built their systems.” The Exchange no longer makes this assertion in this filing and, therefore, does not believe is it necessary to respond to SIG's assertion here.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Options 3, Section 1 (Days and Hours of
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the following rules: Options 3, Section 1 (Days and Hours of Business), Section 7 (Types of Orders and Quote Protocols), Section 13 (Price Improvement Auction (“PRISM”)) and Section 15 (Risk Protections). Each change will be described below.
The Exchange proposes to amend Options 3, Section 1 concerning the Days and Hours of Business. The Exchange proposes to amend the title from “Days and Hours of Business” to “Hours of Business.” BX recently filed to establish General 3, Section 1030, which governs the days the Exchange will be open for business.
The Exchange proposes to amend Options 3, Section 7 to add a new order type entitled “Add Liquidity Order” within Options 3, Section 7(a)(12). Today, Nasdaq ISE, LLC (“ISE”), Nasdaq GEMX, LLC (“GEMX”) and Nasdaq MRX, LLC (“MRX”) have a similar order type within Options 3, Section 7(n). ISE adopted the Add Liquidity Order to provide an additional order type that will give market participants greater control over the circumstances in which their orders are executed.
ISE subsequently amended this order type in 2012 such that, if at the time of entry, an ALO would lock or cross one or more non-displayed orders on the Exchange, the ALO will be cancelled or re-priced to the minimum price variation
At this time, the Exchange proposes to adopt an Add Liquidity Order similar to ISE, GEMX and MRX Options 3, Section 7(n). The proposed Add Liquidity Order would be a limit order that is to be executed in whole or in part on the Exchange (i) only after being displayed on the Exchange's limit order book; and (ii) without routing any portion of the order to another market center. Participants would be able to specify whether an Add Liquidity Order shall be cancelled or re-priced to the MPV above the national best bid price (for sell orders) or below the national best offer price (for buy orders) if, at the time of entry, the order (i) is executable on the Exchange; or (ii) the order is not executable on the Exchange but would lock or cross the national best bid or offer. If at the time of entry, an Add Liquidity Order would lock or cross one or more non-displayed orders or quotes on the Exchange, the Add Liquidity Order shall be cancelled or re-priced to the MPV above the best non-displayed bid price (for sell orders) or below the best non-displayed offer price (for buy orders). Notwithstanding the aforementioned, if an Add Liquidity Order would not lock or cross an order or quote on the System but would lock or cross the NBBO,
Finally, BX proposes to add rule text that is not currently in the ISE, GEMX and MRX rule. Add Liquidity Orders may only be submitted when an options series is open for trading.
The Exchange believes that, similar to ISE, GEMX and MRX, the adoption of an Add Liquidity Order will give market participants greater control over the circumstances in which their orders are executed in addition to the order types which are currently offered today on BX. Below are some examples of the Add Liquidity Order.
The Exchange also proposes to amend Options 3, Section 7(a)(11) to remove the title “Block Order” at the beginning of the sentence to conform the style of the description to the remaining order types within Options 3, Section 7.
The Exchange proposes to amend the Exchange's PRISM rule in Options 3, Section 13 to delete an obsolete auction eligibility requirement and clarify existing rule text.
Today, Options 3, Section 13(i) describes the various eligibility criteria under which a PRISM auction may be initiated, including requirements for when PRISM orders may be submitted. In particular, Section 13(i)(F) provides that PRISM orders submitted during the final two seconds of the trading session in the affected series are not eligible to initiate a PRISM auction and will be immediately cancelled. This restriction was introduced when PRISM was first adopted on the Exchange,
Additionally, the Exchange proposes to amend rule text regarding the PRISM Auction process. Currently, Options 3, Section 13(ii) describes the manner in which a PRISM auction may be conducted. Specifically, with respect to an unrelated market or marketable limit order, Options 3, Section 13(a)(ii)(D) provides,
An unrelated market or marketable limit order (against the BX BBO) on the opposite side of the market from the PRISM Order received during the Auction will not cause the Auction to end early and will execute against interest outside of the Auction. If contracts remain from such unrelated order at the time the auction ends, they will be considered for participation in the order allocation process described in sub-paragraphs (E) and (F) below.
The term “marketable limit order” is too narrow a term as both orders and quotes on the opposite side of the market from the PRISM Order received during the PRISM auction would not cause the PRISM auction to end early and will execute against interest outside of the PRISM auction. Therefore, the Exchange proposes to replace the term “marketable limit order” with the broader term “marketable interest” to accurately describe the interest a PRISM auction would interact with in the order book on the opposite side of the market from the PRISM Order. The Exchange believes that this amendment will bring greater clarity to the PRISM rule. The proposed new rule text would provide,
Unrelated market or marketable interest (against the BX BBO) on the opposite side of the market from the PRISM Order received during the Auction will not cause the Auction to end early and will execute against interest outside of the Auction. If contracts remain from such unrelated interest at the time the auction ends, they will be considered for participation in the order allocation process described in sub-paragraphs (E) and (F) below.
The Exchange notes that Nasdaq PHLX LLC's Price Improvement XL (“PIXL”) auction does not early terminate from contra-side unrelated marketable interest.
The Exchange proposes to amend Options 3, Section 15, Risk Protections, to adopt an optional quoting protection for BX Market Makers. This optional risk protection would allow BX Market Makers to prevent their quotes from removing liquidity from the Exchange's order book upon entry.
Specifically, the Exchange proposes to adopt a new risk protection within Options 3, Section 15(c)(3). With this risk protection, NOM Market Makers may elect to configure their SQF
Participants may elect whether to re-price or cancel their quotes with this functionality. When configured for re-price, quotes would be re-priced to one MPV below the current low offer (for bids) or above the current best bid (for offers) and displayed by the System at one MPV below the current low offer (for bids) or above the current best bid (for offers). Notwithstanding the aforementioned, if a quote with a Post-Only Quote Configuration would not lock or cross an order or quote on the System but would lock or cross the NBBO, the quote will be handled pursuant to Options 3, Section 4(b)(6).
This optional risk protection would enable BX Market Makers to better manage their risk when quoting on BX. Today, BOX Exchange LLC (“BOX”),
Finally, the Nasdaq Options Market LLC (“NOM”) recently codified
Further, with the adoption of Add Liquidity Orders as proposed herein within Options 3, Section 7, all BX Participants may utilize the Add Liquidity Order. The Post-Only Quote Configuration is available to Market Makers only as a risk protection.
Below are some examples of the Post-Only Quote Configuration functionality.
Market Maker B avoids taking liquidity while Market Maker C, who chose not to be configured for such, removes liquidity by interacting with re-priced interest on BX's order book.
The Exchange will issue an Options Trader Alert to Participants with the date of implementation for the Add Liquidity Order and the Post-Only Quote Configuration functionality.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposal to amend Options 3, Section 1 concerning the Days and Hours of Business is consistent with the Act. The proposal to amend the title from “Days and Hours of Business” to “Hours of Business” will bring greater clarity to the rule. BX recently filed to establish General 3, Section 1030, which governs the days the Exchange will be open for business.
The Exchange's proposal to amend Options 3, Section 7 to add a new order type entitled “Add Liquidity Order” within Options 3, Section 7(a)(12) is consistent with the Act. Today, ISE, GEMX and MRX have a similar order type within Options 3, Section 7(n). The Add Liquidity Order will provide an additional order type that will give market participants greater control over the circumstances in which their orders are executed. For investors and market participants that elect only to provide liquidity in certain circumstances, such as to receive a maker fee (rebate) upon execution of an order, the proposed order type will accommodate this strategy. Add Liquidity Orders will only be executed as a “maker” if elected.
Participants may choose to cancel or re-price Add Liquidity Orders if, at the time of entry, the order is executable on BX or the order is not executable on BX but would lock or cross the national best bid or offer. Allowing Add Liquidity Order to re-price ensures that Add Liquidity Orders are only executed when providing liquidity and avoid executing against a non-displayed order or quote resting on BX's order book, which would be in direct contravention with the purpose of the order type—to provide liquidity, not take liquidity. The Add Liquidity Order type is one of the order types that Participants may elect to utilize on BX to accomplish their trading strategies. The Exchange believes that adoption of the Add Liquidity Order will protect investors and the general public by making clear the manner in which the order would re-price on BX's order book if re-price is elected, that is to the MPV above the best non-displayed bid price (for sell orders) or below the best non-displayed offer price (for buy orders). As is the case today, if an order would not lock or cross an order or quote on the System but would lock or cross the NBBO, the order will be handled pursuant to Options 3, Section 5(d).
Add Liquidity Orders may only be submitted when an options series is open for trading.
The Exchange's proposal to amend Options 3, Section 7(a)(11) to remove the title “Block Order” at the beginning of the sentence will conform the style of the description to the remaining order types within Options 3, Section 7.
With respect to amendments to Options 3, Section 13, first, the proposed rule change deletes a PRISM auction eligibility requirement that restricts PRISM orders from being submitted during the final two seconds of the trading day. As discussed above, this system restriction is legacy functionality that was removed as part of the Exchange's technology migration in 2020. The Exchange is therefore proposing to remove the corresponding rule text in Options 3, Section 13(i)(F) as obsolete. The Exchange believes that the proposed changes will align the PRISM rule with the current operation of the Exchange's system and will reduce potential confusion about when PRISM orders may be submitted. As noted above, the Exchange's affiliated options markets, Nasdaq ISE, GEMX, and MRX, do not have similar system restrictions for their respective price improvement mechanisms.
Second, the proposed rule change amends Options 3, Section 13(a)(ii)(D) which describes the manner in which a PRISM auction may be conducted. As noted herein, the term “marketable limit order” is too narrow a term as both orders and quotes on the opposite side of the market from the PRISM Order received during the PRISM auction would not cause the PRISM auction to end early and execute against interest outside of the PRISM auction. Amending Options 3, Section 13(a)(ii)(D) to replace the term “marketable limit order” with the broader term “marketable interest” will more accurately describe the way a PRISM auction would interact with interest in the order book on the opposite side of the market from the PRISM Order. The Exchange believes that this amendment is consistent with the Act as it will bring greater clarity to the PRISM rule.
The Exchange's proposal to amend Options 3, Section 15, Risk Protections, to codify new paragraph (c)(3) to permit BX Market Makers to prevent their quotes from removing liquidity from the Exchange's order book promotes equitable principles of trade and protects investors and the public interest by enhancing the risk protections available to BX Market Makers. The proposal also promotes the policy goals of the Commission which has encouraged execution venues, exchanges, and non-exchanges alike, to enhance risk protection tools and other mechanisms to decrease risk and increase stability.
While BX Market Makers may manage their risk by utilizing the Post-Only Quote Configuration to avoid removing liquidity from the Exchange's order book if their quote would otherwise lock or cross any resting order or quote on the BX order book upon entry, there are also downstream benefits to market participants. Re-priced interest on the order book provides price improvement for market participants that interact with that non-displayed interest that is priced better than the NBBO. For example, the proposed Add Liquidity Order may re-price to the MPV above the national best bid price (for sell orders) or below the national best offer price (for buy orders) resulting in better-priced non-displayed interest that is available on the order book. Market participants are entitled to the better-priced interest when they interact with the re-priced Add Liquidity Order on the order book. Additionally, the benefits of enhanced risk protections flow downstream to counterparties both within and away from the Exchange, thereby increasing systemic protections as well.
The proposed risk protection allows BX Market Makers the ability to avoid removing liquidity from the Exchange's order book if their quote would otherwise lock or cross any resting order or quote on BX's order book upon entry, thereby protecting investors and the general public as BX Market Makers transact a large number of orders on the Exchange and bring liquidity to the marketplace. BX Market Makers would utilize the proposed risk protection to avoid unexpectedly taking liquidity with non-displayed, non-transparent interest
This optional risk protection enables BX Market Makers to better manage their risk when quoting on BX. Today, BOX,
Finally, NOM recently codified
Further, with the adoption of Add Liquidity Orders as proposed herein within Options 3, Section 7, all BX Participants may utilize the Add Liquidity Order. The Post-Only Quote Configuration is available to Market Makers only as a risk protection.
Unlike other market participants, BX Market Makers have certain obligations on the market. BX Market Makers are required to provide continuous two-sided quotes on a daily basis
Finally, with the proposed addition of Add Liquidity Orders, all Participants may utilize similar functionality for orders and quotes.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange's proposal to amend Options 3, Section 1 concerning the Days and Hours of Business does not impose an undue burden on competition. The proposal to amend the title from “Days and Hours of Business” to “Hours of Business” will bring greater clarity to the rule. Amending Options 3, Section 1(c) to reference General 3, Section 1030 will provide Participants with a guidepost as to where to locate the rule that applies to the days the Exchange is open for business. The proposed updated citations to the Options 4 rules will provide correct references for Participants and thereby bring greater clarity to the rules.
The Exchange's proposal to amend Options 3, Section 7 to add a new order type entitled “Add Liquidity Order” within Options 3, Section 7(a)(12) does not impose an undue burden on competition. Today, ISE, GEMX and MRX have a similar order type within Options 3, Section 7(n). The Add Liquidity Order will provide an additional order type that will give market participants greater control over the circumstances in which their orders are executed. All Participants may utilize the Add Liquidity Order type.
The Exchange's proposal to amend Options 3, Section 7(a)(11) to remove the title “Block Order” at the beginning of the sentence will conform the style of the description to the remaining order types within Options 3, Section 7.
Removing Options 3, Section 13(i)(F) does not impose an undue burden on competition as the rule text is obsolete and the removal of the rule text will bring greater transparency to and reducing potential confusion about the Exchange's Rulebook.
Amending Options 3, Section 13(a)(ii)(D) to utilize the broader term “marketable interest” does not impose an undue burden on competition as it will more accurately describe the way a PRISM auction would interact with interest in the order book on the opposite side of the market from the PRISM Order.
Adopting a Post-Only Quote Configuration within Options 3, Section 15(c)(3) does not impose an undue burden on competition, rather the proposal provides BX Market Makers with the opportunity to continue to avail themselves of functionality that currently exists on BOX, NYSE Arca, MIAX Emerald and NOM.
The proposal does not impose a burden on inter-market competition, because Participants may choose to become market makers on a number of other options exchanges, which may have similar but not identical features. The Post-Only Quote Configuration functionality will continue to benefit downstream counterparties, both within and away from the Exchange, who may interact with non-displayed interest on BX's order book and thereby interact with order flow that is priced better than the NBBO.
The proposal does not impose a burden on intra-market competition. BX proposes to adopt an Add Liquidity Order herein which will permit all Participants to receive similar treatment for their orders. Offering BX Market Makers the ability to configure their quotes as Post-Only will allow all market participants on BX to add liquidity only if desired.
The proposed risk protection allows BX Market Makers the ability to avoid removing liquidity from the Exchange's order book if their quote would otherwise lock or cross any resting order or quote on BX's order book upon entry, thereby protecting investors and the general public as BX Market Makers transact a large number of orders on the Exchange and bring liquidity to the marketplace. BX Market Makers are required to add liquidity on BX and, in turn, are rewarded with lower pricing
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may
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.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission's Public Reference Room, 100 F Street NE, Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-BX-2021-054 and should be submitted on or before January 31, 2022.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 30, 2021, NYSE Arca, Inc. (“NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On August 23, 2021, pursuant to Section 19(b)(2) of the Act,
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to issue an order approving or disapproving the proposed rule change so that it has sufficient time to consider the proposed rule change and the issues raised in the comments that have been submitted in connection therewith. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the
The Exchange proposes to amend Phlx Rules at Options 3, Section 1, Hours of Business; Options 4A, Section 2, Definitions and Section 12, Terms of Index Options Contracts. The Exchange also proposes to adopt new Options 4A, Sections 4 and 14, which are currently reserved and amend Options 8, Section 9 Trading Floor Admittance. Finally, the Exchange proposes to make technical amendments to various rules within Options 7 and Options 8.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Phlx Rules at Options 3, Section 1, Hours of Business; Options 4A, Section 2, Definitions and Section 12, Terms of Index Options Contracts. The Exchange also proposes to adopt new Options 4A, Sections 4 and 14, which are currently reserved and amend Options 8, Section 9 Trading Floor Admittance. Finally, the Exchange proposes to make technical amendments to various rules within Options 7 and Options 8. Each change is described below.
The Exchange proposes to state within new Options 3, Section 1(a), “General 3, Rule 1030 governs the days the Exchange will be open for business. This rule will govern the hours of such days during which transactions may be made on the Exchange.” Phlx recently filed to establish General 3, Section 1030.
The Exchange proposes to relocate rule text currently within Options 3, Section 1(a), concerning Exchange-Traded Fund shares, into new Options 3, Section 1(b). The Exchange modified the rule text to state, “Options on any series of Exchange-Traded Fund Shares, as defined in Options 4, Section 3(h), so designated by the Exchange, options on exchange-traded notes including Index-Linked Securities, as defined in Options 4, Section 3(k)(1), and options on Alpha Indexes, as defined in Options 4A, Section 3(f), may be traded on the Exchange until 4:15 P.M. Eastern Time each business day.” The modified rule text provides citations within Options 4A to Exchange-Traded Fund Shares, Index-Linked Securities, and Alpha Indexes.
Next, the Exchange proposes to relocate rule text currently within Options 3, Section 1(a), concerning broad-based indexes, into new Options 3, Section 1(c). The Exchange modified the rule text to state, “Options on any series of Exchange-Traded Fund Shares, as defined in Options 4, Section 3(h), so designated by the Exchange, options on exchange-traded notes including Index-Linked Securities, as defined in Options 4, Section 3(k)(1), and options on Alpha Indexes, as defined in Options 4A, Section 3(f), may be traded on the Exchange until 4:15 P.M. Eastern Time each business day.” The modified rule text amends “shall freely trade” to “may be traded” and adds new rule text to account for p.m.-settled products
The Exchange proposes to relocate rule text currently within Options 3, Section 1(a), concerning foreign currency options, into new Options 3, Section 1(d). The Exchange modified the rule text to state, “Except under unusual conditions as may be determined by the Board (or the Exchange official or officials designated by the Board) foreign currency option trading sessions shall be conducted at such times as the Board of Directors shall specify between 6:00 P.M. Eastern Time Sundays and 3:00. P.M. Eastern Time Fridays, provided that U.S. dollar-settled foreign currency options shall trade during the same hours as narrow-based index options.” The modified rule text removes the phrase, “The Board of Directors has resolved that” as this rule text is unnecessary. Of note, today, foreign currencies trade from 9:30 a.m. to 4:00 p.m. the same as narrow-based indexes.
Proposed new Options 3, Section 1(e) memorializes the current hours for sector indexes that are currently listed on Phlx. The Exchange proposes to provide, “Options on a sector index as provided for within Options 4A, Section 12 may be traded on the Exchange until 4:00 p.m. each business day.” This rule text will account for sector indexes, which are not currently mentioned within Options 3, Section 1. Adding
The Exchange proposes to relocate the first two sentences of current Options 3, Section 1(a), into current Options 8, Section 9, Trading Floor Admittance, with the exception of the phrase within “Except as otherwise ordered by the Board of Directors.” Any future amendments to this rule would be filed with the Commission, therefore, this phrase is being removed. Because the first two sentences of current Options 3, Section 1(a) relate to the Trading Floor, the Exchange proposes to relocate this rule text within the Options 8 Rules related to the Trading Floor. The relocated rule text would be placed within new Options 8, Section 9(a). The Exchange also proposes to re-letter current Options 8, Section 9 paragraph “(a)” as “(b).” Finally, the Exchange proposes to amend the title of Options 8, Section 9 to “Trading Floor Hours of Business and Admittance” which is a more descriptive title.
The remainder of the rule text within current Options 3, Section 1(a) is being deleted as unnecessary.
The Exchange proposes to adopt a new rule at Options 4A, Section 4, which is currently reserved, and title the rule “Index Options Values for Settlement.” Proposed Options 4A, Section 4 would specify the way the Exchange would arrive at index options values in cases where the Exchange's index rules would not otherwise apply. The Exchange is relocating certain portions of current Phlx Options 4A rules into proposed new Options 4A, Section 4 so all related rule text are within the same rule.
Proposed Options 4A, Section 4(a) rule text is being relocated from current rule text within Options 4A, Section 12(d). The rule text provides that where Exchange index options rules do not apply, Phlx index options would settle based on the current index value used to settle the exercise of an index options contract, which would be the closing index value for the day on which the index options contract is exercised in accordance with the Rules of The Options Clearing Corporation (“OCC”) or, if such day is not a business day, for the most recent business day. The rule text is being relocated without change.
Proposed Options 4A, Section 4(b) rule text is being relocated from current rule text within Options 4A, Section 12(g). The Exchange proposes to add the title “Pricing When Primary Market Does Not Open” to proposed Options 4A, Section 4(b). The rule text provides for the current index value in the instance the primary market for a security underlying the current index value of an index option does not open for trading on a given day, which is an expiration day. In this case, the settlement price at expiration shall be the last reported sale price of the security from the previous trading day, unless the current index value at expiration is fixed in accordance with the Rules and By-Laws of OCC. The rule text is being relocated without change.
Proposed Options 4A, Section 4(c) rule text is being relocated from current rule text within Supplementary Material .01 of Options 4A, Section 2. The Exchange is proposing to add the title “Discretion” to proposed Options 4A, Section 4(c). The rule text provides that for any series of index options the Exchange may, in its discretion, provide that the calculation of the final index settlement value of any index on which options are traded at the Exchange will be determined by reference to the prices of the constituent stocks at a time other than the close of trading on the last trading day before expiration. The rule text is being relocated without change.
The Exchange proposes to add new rule text within Options 4A, Section 4(c)(1) which states,
With respect to any securities index on which options are traded on the Exchange, the source of the prices of component securities used to calculate the current index level at expiration is determined by the Reporting Authority for that index.
This rule text is identical to the rule text within Cboe Exchange, Inc. (“Cboe”) Rule 4.13 at .09 of Interpretations and Policies and follows the Exchange's current practice.
The Exchange believes that Options 4A, Section 4 will provide a transparent reference to the way the Exchange arrives at index options values for settlement where the Exchange's rules may not apply. With respect to a particular index, the Reporting Authority is the institution(s) or reporting service designated by the Exchange as the official source for calculating and determining the current value or the closing index value of the index.
The Exchange proposes to amend Options 4A, Section 2 to adopt a new
The Exchange believes that the addition of the Reporting Authority for each index will add clarity to the rule. The proposed reporting authorities represent the current reporting authorities for each index without change. As noted above, a Reporting Authority represents the official source for calculating and determining the current value. The Exchange determines the Reporting Authority for each index listed on the Exchange.
Generally, pursuant to Options 4A, Section 12(a)(2), index options listed on the Exchange are subject to strike price intervals of no less than $5, provided that certain classes of index options have strike price intervals of no less than $2.50 if the strike price is less than $200. Today, those classes of strike price intervals that have strike price intervals of no less than $2.50 if the strike price is less than $200 are listed within Options 4A, Section 12(a)(2). The Exchange proposes to amend Options 4A, Section 12(a)(2), to add the Nasdaq-100 Index to the list of classes where strike price intervals of no less than $2.50 are generally permitted if the strike price is less than $200. The Nasdaq-100 Index was inadvertently omitted from the current list. The Exchange notes that Nasdaq 100 Micro Index Options were added to the list of classes where strike price intervals of no less than $2.50 are generally permitted if the strike price is less than $200 in 2021.
The Exchange also proposes to amend Options 4A, Section 12(a)(2)(F) to rename the “PHLX/KBW Bank Index” to “KBW Bank Index” to reflect the current name of the Index.
The Exchange proposes to amend Options 4A, Section 12(a)(5) concerning European-style options, to reword the current rule text to make clear that the list which follows represents indexes on which options may be listed. The Exchange is also adding a reference to the p.m.-settled indexes
The Exchange proposes to relocate rule text from Options 4A, Section 12(f) to Options 4A, Section 12(d) with a minor change.
The Exchange proposes to add the phrase “on the following indexes” to the end of Options 4A, Section 12(e)(II) for clarity. The Exchange also proposes to remove the word “Options” within the list of indexes at Options 4A, Section 12(e)(II) and add the following indexes which were inadvertently not on the list: PHLX Utility Sector Index and PHLX Gold/Silver Sector Index as well as the recently approved Nasdaq-100® Volatility Index. These sector indexes are a.m.-settled products. The only indexes that are p.m.-settled are part of a pilot program.
The Exchange proposes to add a new paragraph (f) within Options 4A, Section 12 which describes the p.m.-settled index options.
P.M.-Settled Index Options. The last day of trading for P.M.-settled index options shall be the business day of expiration, or, in the case of an option contract expiring on a day that is not a business day, on the last business day before its expiration date. The current index value at expiration of the index is determined by the last reported sale price of each component security. In the event that the primary market for an underlying security does not open for trading on the expiration date, the price of that security shall be the last reported sale price prior to the expiration date. The following P.M.-settled index options are approved for trading on Phlx:
The Exchange proposes to adopt a proposed rule at Options 4A, Section 14 entitled “Disclaimers.”
Each index has a designated Reporting Authority, which is the institution or reporting service designated by the Exchange as the official source for routinely calculating the level of each respective index. MIAX Pearl LLC (“MIAX Pearl”) added a disclaimer to its rules in 2018.
The Exchange believes that the disclaimer, would encourage the Reporting Authority for each index to develop and maintain indexes that may qualify for options trading on the Exchange, thereby providing investors with new investment opportunities.
The Exchange proposes to remove the stray word “Rule” before Options 2, Section 12(a) with the description of the term “Lead Market Maker” within Options 7, Section 1. Also, the Exchange proposes to update the citation with the description of “Professional” within Options 7, Section 1 from “Exchange Rule 1000(b)(43)” to “Options 1, Section 1(b)(45).”
The Exchange proposes to amend Options 7, Section 8, Membership Fees at Part A, Permit and Registration Fees. Specifically, the Exchange proposes to remove rule text regarding a waiver of the Inactive Nominee Fee which was in place from April 1, 2021 through September 30, 2021.
The Exchange proposes to amend Options 7, Section 9, D, to add the phrase “General 5” before Rule 9216 to provide the complete citation. Also, the Exchange proposes to remove the stray word “Rule” from Options 7, Section 9, D.
The Exchange proposes a technical amendment within Options 8, Section 24, “Bids And Offer-Premium” to re-letter the current paragraphs. As a result of the changes to this section, the Exchange proposes to update citations to Options 8, Section 24 within E-11, “Two-Way, Three Way and Multi-Spread Transactions (FOREIGN CURRENCY OPTION ONLY)”.
The Exchange proposes technical amendments to Options 8, Section 28, “Responsibilities of Floor Brokers,” to update a citation to Rule 1084 to Options 5, Section 2. Similar updates are proposed to B-7, “Options Floor Based Management System,” and C-2, “Options Floor Based Management System”.
The Exchange proposes technical amendments to Options 8, Section 29, “Use of Floor Based Management System by Floor Market Makers and Lead Market Makers,” to update two citations. The first citation is to Supplementary Material .08 to Options 10, Section 6, the rule citation should be to Supplementary Material .01 to Options 10, Section 5.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposal to amend Options 3, Section 1 is consistent with the Act as the proposed amendment will make clear the hours within which various products listed on Phlx currently trade. Phlx recently filed to establish General 3, Section 1030.
The Exchange's proposal to relocate rule text currently within Options 3, Section 1(a), concerning Exchange-Traded Fund shares, into new Options 3, Section 1(b) and modify the rule text to provide citations within Options 4A to Exchange-Traded Fund Shares, Index-Linked Securities, and Alpha Indexes is consistent with the Act as the modifications add clarity to existing rule text.
The Exchange's proposal to relocate rule text currently within Options 3, Section 1(a), concerning broad-based indexes, into new Options 3, Section 1(c) and modify the rule text from “shall freely trade” to “may be traded” is consistent with the Act as that change is non-substantive. The addition of hours for p.m.-settled products
The Exchange's proposal to relocate rule text currently within Options 3, Section 1(a), concerning foreign currency options, into new Options 3, Section 1(d) and modify the rule text to remove rule text that is unnecessary is a non-substantive change.
The addition of proposed new Options 3, Section 1(e) is consistent with the Act as the rule text memorializes the current hours for sector indexes that are currently listed on Phlx. This text is consistent with the Act as the rule text will specifically account for sector indexes for ease of reference, thereby providing additional transparency to the rule.
The Exchange's proposal to relocate the first two sentences of current Options 3, Section 1(a), into current Options 8, Section 9, Trading Floor Admittance, with the exception of the phrase within “Except as otherwise ordered by the Board of Directors” is consistent with the Act as this text applies to the Trading Floor. The Exchange's proposal removes the current discretion permitted by the Board of Directors, thereby adding certainty to the rule text. Any changes to the rule text would be filed with the Commission. Amending the title of Options 8, Section 9 to “Trading Floor Hours of Business and Admittance” is a non-substantive change.
Clearly specifying the hours that each Phlx product trades within Options 3, Section 1 promotes just and equitable principles of trade by removing any confusion for members as to when the products are available.
The Exchange's proposal to adopt a new rule at Options 4A, Section 4, which is currently reserved, and title the rule “Index Options Values for Settlement” is consistent with the Act. Proposed Options 4A, Section 4 would specify the way the Exchange would arrive at index options values in cases where the Exchange's index rules would not otherwise apply. The Exchange is relocating certain portions of current Phlx Options 4A rules into proposed new Options 4A, Section 4, without change, so all related rule text are within the same rule.
The relocation of certain rule text within Options 4A, without change, is non-substantive. The proposal to add rule text within Phlx's Options 4A, Section 4(c)(1), which is identical to rule text within Cboe Rule 4.13 at .09 of Interpretations and Policies,
The Exchange believes that this proposed rule will provide a transparent reference to the way the Exchange arrives at index options values for settlement where the Exchange's rules may not apply. With respect to a particular index, the Reporting Authority is the institution(s) or reporting service designated by the Exchange as the official source for calculating and determining the current value or the closing index value of the index.
Today, those classes of strike price intervals that have strike price intervals of no less than $2.50 if the strike price is less than $200 are listed within Options 4A, Section 12(a)(2). The Exchange's proposal to amend Options 4A, Section 12(a)(2), to add the Nasdaq-100 Index to the list of classes where strike price intervals of no less than $2.50 are generally permitted if the strike price is less than $200 is consistent with the Act. The Nasdaq-100 Index was inadvertently omitted from the current list. The Exchange notes that Nasdaq 100 Micro Index Options were added to the list of classes where strike price intervals of no less than $2.50 are generally permitted if the strike price is less than $200 in 2021.
The Exchange's proposal to amend Options 4A, Section 12(a)(2)(F) to rename the “PHLX/KBW Bank Index” to “KBW Bank Index” to reflect the current name of the Index is a non-substantive amendment.
The Exchange's proposal to amend Options 4A, Section 12(a)(5) concerning European-style options, to reword the sentence to make clear that the list which follows represents indexes on which options may be listed is consistent with the Act. The current language does not distinguish between a.m.-settled and p.m.-settled options. All of the indexes listed within Options 4A, Section 12(a)(5) are a.m.-settled options and currently available on Phlx. Adding a reference to the p.m.-settled indexes
The Exchange's proposal to relocate rule text from Options 4A, Section 12(f) to Options 4A, Section 12(d), with a minor change,
Removing the word “Options” within the list of indexes at Options 4A, Section 12(e)(II) and adding the sector indexes, which were inadvertently not listed, as well as the recently approved Nasdaq-100® Volatility Index is consistent with the Act and non-substantive in nature. These sector indexes are a.m.-settled products. The only indexes that are p.m.-settled are part of a pilot program.
The proposal to add a new paragraph (f) within Options 4A, Section 12 which describes the p.m.-settled index options
The Exchange's proposal to adopt a proposed rule at Options 4A, Section 14 entitled “Disclaimers”
The Exchange's proposal to make technical amendments within Options 2, Section 12(a), Options 7, Section 1, Options 7, Section 8, and Options 7, Section 9, D, Options 8, Section 24, Options 8, Section 28, Options 8, Section 29, B-7, C-2, and E-11 will bring greater clarity to these rules.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange's proposal to amend Options 3, Section 1 to make clear the hours within which various products listed on Phlx currently trade does not impose an undue burden on competition. The addition of citations, and hours for p.m-settled products, Nasdaq-100 Volatility Index Options and sector indexes will make clear when those products trade. The hours apply uniformly to all members and member organizations.
The Exchange's proposal to adopt a new rule at Options 4A, Section 4, which is currently reserved, and title the rule “Index Options Values for Settlement” does not impose an undue burden on competition. Proposed Options 4A, Section 4 would specify the way the Exchange would arrive at index options values in cases where the Exchange's index rules would not otherwise apply. The Exchange is relocating certain portions of current Phlx Options 4A rules into proposed new Options 4A, Section 4 so that it may locate all the relevant rule text within the same rule.
The proposal to add new rule text within Options 4A, Section 4(c)(1) is identical to rule text within Cboe Rule 4.13 at .09 of Interpretations and Policies and follows the Exchange's current practice.
The Exchange's proposed amendments to Options 4A, Section 12 do not impose an undue burden on competition. The addition of the Nasdaq-100 Index to the list of strike price intervals of no less than $2.50 if the strike price is less than $200 will make clear the manner in which the Nasdaq-100 Index trades today. The Nasdaq-100 Index is currently permitted to trade in strike price intervals of no less than $2.50 are generally permitted if the strike price is less than $200 on ISE, GEMX and MRX.
Rewording Options 4A, Section 12(a)(5), related to European-style options, will make clear which indexes are a.m.-settled and those that are p.m.-settled options. All of the indexes listed within Options 4A, Section 12(a)(5) are a.m.-settled options and currently available on Phlx. Adding a reference to the p.m.-settled indexes
The Exchange's proposal to amend Options 4A, Section 14 to adopt a rule text, identical to ISE and NOM,
The Exchange's proposal to make technical amendments within Options 2, Section 12(a), Options 7, Section 1, Options 7, Section 8, and Options 7, Section 9, D, Options 8, Section 24, Options 8, Section 28, Options 8, Section 29, B-7, C-2, and E-11 will bring greater clarity to these rules.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-Phlx-2021-76 and should be submitted on or before January 31, 2022.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
2:00 p.m. on Thursday, January 13, 2022.
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 of the following determinations: I hereby determine that certain objects being imported from abroad pursuant to an agreement with their foreign owner or custodian for temporary display in the exhibition “Women and the Making of Joyce's
Chi D. Tran, Program Administrator, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 stat. 2681,
Notice is hereby given of the following determinations: I hereby determine that certain objects being imported from abroad pursuant to an agreement with their foreign owner or custodian for temporary conservation and display in the exhibition “Lygia Pape: Tecelar” at The Art Institute of Chicago, in Chicago, Illinois, and at possible additional exhibitions or venues yet to be determined, are of cultural significance, and, further, that their temporary conservation and exhibition or display within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the
Chi D. Tran, Program Administrator, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Notice is hereby given of the following determinations: I hereby determine that certain objects being imported from abroad pursuant to agreements with their foreign owners or custodians for temporary display in the exhibition “Fictions of Emancipation: Carpeaux Recast” at The Metropolitan Museum of Art, New York, New York, and at possible additional exhibitions or venues yet to be determined, are of cultural significance, and, further, that their temporary exhibition or display within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the
Chi D. Tran, Program Administrator, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 stat. 2681,
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions for 17 individuals from the hearing requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these hard of hearing and deaf individuals to continue to operate CMVs in interstate commerce.
Each group of renewed exemptions were applicable on the dates stated in the discussions below and will expire on the dates provided below. Comments must be received on or before February 9, 2022.
You may submit comments identified by the Federal Docket Management System (FDMS) Docket No. FMCSA-2012-0154, Docket No. FMCSA-2013-0122, Docket No. FMCSA-2013-0123, Docket No. FMCSA-2015-0326, Docket No. FMCSA-2015-0329, Docket No. FMCSA-2016-0003, Docket No. FMCSA-2017-0058, or Docket No. FMCSA-2019-0111 using any of the following methods:
•
•
•
•
To avoid duplication, please use only one of these four methods. See the “Public Participation” portion of the
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
If you submit a comment, please include the docket number for this notice (Docket No. FMCSA-2012-0154, Docket No. FMCSA-2013-0122, Docket No. FMCSA-2013-0123, Docket No. FMCSA-2015-0326, Docket No. FMCSA-2015-0329, Docket No. FMCSA-2016-0003, Docket No. FMCSA-2017-0058, or Docket No. FMCSA-2019-0111), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
FMCSA will consider all comments and material received during the comment period.
To view comments go to
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its regulatory process. DOT posts these comments, without edit, including any personal information the commenter provides, to
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the FMCSRs for no longer than a 5-year period if it finds such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. The statute also allows the Agency to renew exemptions at the end of the 5-year period. FMCSA grants medical exemptions from the FMCSRs for a 2-year period to align with the maximum duration of a driver's medical certification.
The physical qualification standard for drivers regarding hearing found in 49 CFR 391.41(b)(11) states that a person is physically qualified to drive a CMV if that person first perceives a forced whispered voice in the better ear at not less than 5 feet with or without
This standard was adopted in 1970 and was revised in 1971 to allow drivers to be qualified under this standard while wearing a hearing aid, 35 FR 6458, 6463 (Apr. 22, 1970) and 36 FR 12857 (July 3, 1971).
The 17 individuals listed in this notice have requested renewal of their exemptions from the hearing standard in § 391.41(b)(11), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable 2-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b), FMCSA will take immediate steps to revoke the exemption of a driver.
In accordance with 49 U.S.C. 31136(e) and 31315(b), each of the 17 applicants has satisfied the renewal conditions for obtaining an exemption from the hearing requirement. The 17 drivers in this notice remain in good standing with the Agency. In addition, for Commercial Driver's License (CDL) holders, the Commercial Driver's License Information System and the Motor Carrier Management Information System are searched for crash and violation data. For non-CDL holders, the Agency reviews the driving records from the State Driver's Licensing Agency. These factors provide an adequate basis for predicting each driver's ability to continue to safely operate a CMV in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each of these drivers for a period of 2 years is likely to achieve a level of safety equal to that existing without the exemption.
In accordance with 49 U.S.C. 31136(e) and 31315(b), the following groups of drivers received renewed exemptions in the month of January and are discussed below.
As of January 6, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following four individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers:
The drivers were included in docket numbers FMCSA-2015-0326, FMCSA-2015-0329, or FMCSA-2017-0058. Their exemptions are applicable as of January 6, 2022 and will expire on January 6, 2024.
As of January 8, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following three individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers:
The drivers were included in docket number FMCSA-2016-0003. Their exemptions are applicable as of January 8, 2022 and will expire on January 8, 2024.
As of January 14, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following five individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers:
The drivers were included in docket numbers FMCSA-2012-0154, FMCSA-2013-0122, FMCSA-2013-0123, or FMCSA-2017-0058. Their exemptions are applicable as of January 14, 2022 and will expire on January 14, 2024.
As of January 21, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following five individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers:
The drivers were included in docket number FMCSA-2019-0111. Their exemptions are applicable as of January 21, 2022 and will expire on January 21, 2024.
The exemptions are extended subject to the following conditions: (1) Each driver must report any crashes or accidents as defined in § 390.5; and (2) report all citations and convictions for disqualifying offenses under 49 CFR 383 and 49 CFR 391 to FMCSA; and (3) each driver prohibited from operating a motorcoach or bus with passengers in interstate commerce. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official. In addition, the exemption does not exempt the individual from meeting the applicable CDL testing requirements. Each exemption will be valid for 2 years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b).
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the 17 exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the hearing requirement in § 391.41(b)(11). In accordance with 49 U.S.C. 31136(e) and 31315(b), each exemption will be valid for 2 years unless revoked earlier by FMCSA.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions for 91 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these individuals to continue to operate CMVs in interstate commerce without meeting the vision requirements in one eye.
Each group of renewed exemptions were applicable on the dates stated in the discussions below and will expire on the dates stated in the discussions below. Comments must be received on or before February 9, 2022.
You may submit comments identified by the Federal Docket Management System (FDMS) Docket No. FMCSA-1999-5748, Docket No. FMCSA-2000-7165, Docket No. FMCSA-2001-10578, Docket No. FMCSA-2003-15892, Docket No. FMCSA-2005-20560, Docket No. FMCSA-2005-21711, Docket No. FMCSA-2005-22194, Docket No. FMCSA-2005-22727, Docket No. FMCSA-2006-26653, Docket No. FMCSA-2007-27897, Docket No. FMCSA-2008-0021, Docket No. FMCSA-2009-0154, Docket No. FMCSA-2009-0206, Docket No. FMCSA-2009-0303, Docket No. FMCSA-2010-0354, Docket No. FMCSA-2010-0372, Docket No. FMCSA-2010-0385, Docket No. FMCSA-2011-0010, Docket No. FMCSA-2011-0024, Docket No. FMCSA-2011-0092, Docket No. FMCSA-2011-0275, Docket No. FMCSA-2011-0299, Docket No. FMCSA-2011-0325, Docket No. FMCSA-2011-0380, Docket No. FMCSA-2013-0025, Docket No. FMCSA-2013-0029, Docket No. FMCSA-2013-0165, Docket No. FMCSA-2013-0166, Docket No. FMCSA-2013-0168, Docket No. FMCSA-2013-0169, Docket No. FMCSA-2013-0170, Docket No. FMCSA-2013-0174, Docket No. FMCSA-2014-0300, Docket No. FMCSA-2014-0302, Docket No. FMCSA-2014-0304, Docket No. FMCSA-2015-0048, Docket No. FMCSA-2015-0055, Docket No. FMCSA-2015-0056, Docket No. FMCSA-2015-0071, Docket No. FMCSA-2015-0072, Docket No. FMCSA-2015-0344, Docket No. FMCSA-2015-0345, Docket No. FMCSA-2015-0347, Docket No. FMCSA-2016-0208, Docket No. FMCSA-2016-0212, Docket No. FMCSA-2016-0377, Docket No. FMCSA-2017-0017, Docket No. FMCSA-2017-0018, Docket No. FMCSA-2017-0022, Docket No. FMCSA-2017-0023, Docket No. FMCSA-2017-0026, Docket No. FMCSA-2018-0014, Docket No. FMCSA-2019-0005, Docket No. FMCSA-2019-0009, Docket No. FMCSA-2019-0011, Docket No. FMCSA-2019-0013, Docket No. FMCSA-2019-0014, Docket No. FMCSA-2019-0015, or Docket No. FMCSA-2020-0018 using any of the following methods:
•
•
•
•
To avoid duplication, please use only one of these four methods. See the “Public Participation” portion of the
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
If you submit a comment, please include the docket number for this notice (Docket No. FMCSA-1999-5748; FMCSA-2000-7165; FMCSA-2001-10578; FMCSA-2003-15892; FMCSA-
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
FMCSA will consider all comments and material received during the comment period.
To view comments go to
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its regulatory process. DOT posts these comments, without edit, including any personal information the commenter provides, to
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the FMCSRs for no longer than a 5-year period if it finds such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. The statute also allows the Agency to renew exemptions at the end of the 5-year period. FMCSA grants medical exemptions from the FMCSRs for a 2-year period to align with the maximum duration of a driver's medical certification.
The physical qualification standard for drivers regarding vision found in 49 CFR 391.41(b)(10) states that a person is physically qualified to drive a CMV if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing red, green, and amber.
The 91 individuals listed in this notice have requested renewal of their exemptions from the vision standard in § 391.41(b)(10), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable 2-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b), FMCSA will take immediate steps to revoke the exemption of a driver.
In accordance with 49 U.S.C. 31136(e) and 31315(b), each of the 91 applicants has satisfied the renewal conditions for obtaining an exemption from the vision standard (see 64 FR 40404; 64 FR 66962; 65 FR 33406; 65 FR 57234; 66 FR 53826; 66 FR 63289; 66 FR 66966; 68 FR 13360; 68 FR 52811; 68 FR 61860; 68 FR 64944; 68 FR 69434; 70 FR 12265; 70 FR 17504; 70 FR 30997; 70 FR 48797; 70 FR 53412; 70 FR 57353; 70 FR 61165; 70 FR 61493; 70 FR 67776; 70 FR 71884; 70 FR 72689; 70 FR 74102; 71 FR 4632; 72 FR 8417; 72 FR 27624; 72 FR 36099; 72 FR 39879; 72 FR 40362; 72 FR 52419; 72 FR 62897; 72 FR 64273; 73 FR 5259; 73 FR 15567; 73 FR 27015; 74 FR 19270; 74 FR 34394; 74 FR 37295; 74 FR 41971; 74 FR 43217; 74 FR 48343; 74 FR 49069; 74 FR 53581; 74 FR 57551; 74 FR 60021; 74 FR 60022; 74 FR 62632; 75 FR 1451; 75 FR 4623; 75 FR 19674; 75 FR 72863; 75 FR 77492; 76 FR 2190; 76 FR 5425; 76 FR 7894; 76 FR 9856; 76 FR 17481; 76 FR 20076; 76 FR 20078; 76 FR 25762; 76 FR 25766; 76 FR 28125; 76 FR 37885; 76 FR 53708; 76 FR 54530; 76 FR 62143; 76 FR 64164; 76 FR 64171; 76 FR 66123; 76 FR 70210; 76 FR 70215; 76 FR 73769; 76 FR 75940; 76 FR 75942; 77 FR 539; 77 FR 545; 77 FR 3547; 77 FR 3554; 77 FR 10608; 77 FR 17109; 77 FR 23797; 77 FR 27845; 77 FR 74273; 78 FR 800; 78 FR 12813; 78 FR 16762; 78 FR 20376; 78 FR 24300; 78 FR 34141; 78 FR 34143; 78 FR 37270; 78 FR 47818; 78 FR 52602; 78 FR 62935; 78 FR 63302; 78 FR 63307; 78 FR 64274; 78 FR 64280; 78 FR 66099; 78 FR 67452; 78 FR 67454; 78 FR 67460; 78 FR 68137; 78 FR 76395; 78 FR 77778; 78 FR 77780; 78 FR 77782; 78 FR 78475; 78 FR 78477; 79 FR 1908; 79 FR 2247; 79 FR 2248; 79 FR 3919; 79 FR 4803; 79 FR 6993; 79 FR 14333; 79 FR 23797; 79 FR 53708; 79 FR 73687; 80 FR 2473; 80 FR 3723; 80 FR 12248; 80 FR 14223; 80 FR 15863; 80 FR 18693; 80 FR 18696; 80 FR 26139; 80 FR 29149; 80 FR 29152; 80 FR 31635; 80 FR 31640; 80 FR 33011; 80 FR 37718; 80 FR 44188; 80 FR 48402; 80 FR 48409; 80 FR 49302; 80 FR 59225; 80 FR 59230; 80 FR 62161; 80 FR 63869; 80 FR 67472; 80 FR 67481; 80 FR 70060; 80 FR 76345; 80 FR 79414; 80 FR 80443; 81 FR 1284; 81 FR 1474; 81 FR 11642; 81 FR 15401; 81 FR 16265; 81 FR 20435; 81 FR 44680; 81 FR 48493; 81 FR 60117; 81 FR 70253; 81 FR 81230; 81 FR 86063; 81 FR 96165; 81 FR 96180; 81 FR 96191; 82 FR 12683; 82 FR 13045; 82 FR 13048; 82 FR 15277; 82 FR 18949; 82 FR 18956; 82 FR 20962; 82 FR 22379; 82 FR 24430; 82 FR 32919; 82 FR 33542; 82 FR 35050; 82 FR 37499; 82 FR 37504; 82 FR 43647; 82 FR 47309; 82 FR 47312; 83 FR 2289; 83 FR 2306; 83 FR 2311; 83 FR 3861; 83 FR 4537; 83 FR 6922; 83 FR 6925; 83 FR 18648; 83 FR 28325; 83 FR 33292; 83 FR 53724; 83 FR 54644; 84 FR 2326; 84 FR 10389; 84 FR 12665; 84 FR 16320; 84 FR 21393; 84 FR 21397; 84 FR 21401; 84 FR 23629; 84 FR 33801; 84 FR 46088; 84 FR 47045; 84 FR 47047; 84 FR 47050; 84 FR 47057; 84 FR 52160; 84 FR 52166; 84 FR 58437; 84 FR 58448; 84 FR 58450; 84 FR 58453; 84 FR 66442; 84 FR 66444; 84 FR 68288; 84 FR 69814; 85 FR 4764; 85 FR 4769; 85 FR 8334). They have submitted evidence showing that the vision in the better eye continues to meet the requirement specified at § 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past 2 years indicates each applicant continues to meet the vision exemption requirements. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of 2 years is likely to achieve a level of safety equal to that existing without the exemption.
In accordance with 49 U.S.C. 31136(e) and 31315(b), the following groups of drivers received renewed exemptions in the month of February and are discussed below. As of February 9, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following 85 individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (64 FR 40404; 64 FR 66962; 65 FR 33406; 65 FR 57234; 66 FR 53826; 66 FR 63289; 66 FR 66966; 68 FR 13360; 68 FR 52811; 68 FR 61860; 68 FR 64944; 68 FR 69434; 70 FR 12265; 70 FR 17504; 70 FR 30997; 70 FR 48797; 70 FR 53412; 70 FR 57353; 70 FR 61165; 70 FR 61493; 70 FR 67776; 70 FR 71884; 70 FR 72689; 70 FR 74102; 71 FR 4632; 72 FR 8417; 72 FR 27624; 72 FR 36099; 72 FR 39879; 72 FR 40362; 72 FR 52419; 72 FR 62897; 72 FR 64273; 73 FR 5259; 73 FR 15567; 73 FR 27015; 74 FR 19270; 74 FR 34394; 74 FR 37295; 74 FR 41971; 74 FR 43217; 74 FR 48343; 74 FR 49069; 74 FR 53581; 74 FR 57551; 74 FR 60021; 74 FR 60022; 74 FR 62632; 75 FR 1451; 75 FR 4623; 75 FR 19674; 75 FR 72863; 75 FR 77492; 76 FR 2190; 76 FR 5425; 76 FR 7894; 76 FR 9856; 76 FR 17481; 76 FR 20076; 76 FR 20078; 76 FR 25762; 76 FR 25766; 76 FR 28125; 76 FR 37885; 76 FR 53708; 76 FR 54530; 76 FR 62143; 76 FR 64164; 76 FR 64171; 76 FR 66123; 76 FR 70210; 76 FR 70215; 76 FR 73769; 76 FR 75940; 76 FR 75942; 77 FR 545; 77 FR 3547; 77 FR 3554; 77 FR 17109; 77 FR 23797; 77 FR 27845; 77 FR 74273; 78 FR 800; 78 FR 12813; 78 FR 16762; 78 FR 20376; 78 FR 24300; 78 FR 34141; 78 FR 34143; 78 FR 37270; 78 FR 47818; 78 FR 52602; 78 FR 62935; 78 FR 63302; 78 FR 63307; 78 FR 64274; 78 FR 64280; 78 FR 66099; 78 FR 67452; 78 FR 67454; 78 FR 67460; 78 FR 68137; 78 FR 76395; 78 FR 77778; 78 FR 77780; 78 FR 77782; 78 FR 78475; 78 FR 78477; 79 FR 2247; 79 FR 2248; 79 FR 3919; 79 FR 4803; 79 FR 23797; 79 FR 53708; 79 FR 73687; 80 FR 2473; 80 FR 3723; 80 FR 12248; 80 FR 14223; 80 FR 15863; 80 FR 18693; 80 FR 18696; 80 FR 26139; 80 FR 29149; 80 FR 29152; 80 FR 31635; 80 FR 31640; 80 FR 33011; 80 FR 37718; 80 FR 44188; 80 FR 48402; 80 FR 48409; 80 FR 49302; 80 FR 59225; 80 FR 59230; 80 FR 62161; 80 FR 63869; 80 FR 67472; 80 FR 67481; 80 FR 70060; 80 FR 76345; 80 FR 79414; 80 FR 80443; 81 FR 1284; 81 FR 11642; 81 FR 15401; 81 FR 16265; 81 FR 20435; 81 FR 44680; 81 FR 60117; 81 FR 70253; 81 FR 81230; 81 FR 86063; 81 FR 96165; 81 FR 96180; 81 FR 96191; 82 FR 12683; 82 FR 13045; 82 FR 13048; 82 FR 15277; 82 FR 18949; 82 FR 18956; 82 FR 20962; 82 FR 22379; 82 FR 24430; 82 FR 32919; 82 FR 33542; 82 FR 35050; 82 FR 37499; 82 FR 37504; 82 FR 43647; 82 FR 47309; 82 FR 47312; 83 FR 2289; 83 FR 2306; 83 FR 3861; 83 FR 4537; 83 FR 6922; 83 FR 6925; 83 FR 28325; 83 FR 33292; 83 FR 53724; 83 FR 54644; 84 FR 2326; 84 FR 10389; 84 FR 12665; 84 FR 16320; 84 FR 21393; 84 FR 21397; 84 FR 21401; 84 FR 23629; 84 FR 33801; 84 FR 46088; 84 FR 47045; 84 FR 47047; 84 FR 47050; 84 FR 47057; 84 FR 52160; 84 FR 52166; 84 FR 58437; 84 FR 58448; 84 FR 58450; 84 FR 58453; 84 FR 66442; 84 FR 66444; 84 FR 68288; 84 FR 69814; 85 FR 4764; 85 FR 4769; 85 FR 8334):
The drivers were included in docket numbers FMCSA-1999-5748; FMCSA-2000-7165; FMCSA-2001-10578; FMCSA-2003-15892; FMCSA-2005-20560; FMCSA-2005-21711; FMCSA-2005-22194; FMCSA-2005-22727; FMCSA-2006-26653; FMCSA-2007-27897; FMCSA-2008-0021; FMCSA-2009-0154; FMCSA-2009-0206; FMCSA-2009-0303; FMCSA-2010-0354; FMCSA-2010-0372; FMCSA-2010-0385; FMCSA-2011-0010; FMCSA-2011-0024; FMCSA-2011-0092; FMCSA-2011-0275; FMCSA-2011-0299; FMCSA-2011-0380; FMCSA-2013-0025; FMCSA-2013-0029; FMCSA-2013-0165; FMCSA-2013-0166; FMCSA-2013-0168; FMCSA-2013-0169; FMCSA-2013-0170; FMCSA-2014-0300; FMCSA-2014-0302; FMCSA-2014-0304; FMCSA-2015-0048; FMCSA-2015-0055; FMCSA-2015-0056; FMCSA-2015-0071; FMCSA-2015-0072; FMCSA-2015-0344; FMCSA-2015-0345; FMCSA-2016-0208; FMCSA-2016-0212; FMCSA-2016-0377; FMCSA-2017-0017; FMCSA-2017-0018; FMCSA-2017-0022; FMCSA-2017-0023; FMCSA-2018-0014; FMCSA-2019-0005; FMCSA-2019-0009; FMCSA-2019-0011; FMCSA-2019-0013; FMCSA-2019-0014; FMCSA-2019-0015; FMCSA-2020-0018. Their exemptions are applicable as of February 9, 2022 and will expire on February 9, 2024.
As of February 12, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following individual has satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (81 FR 1474; 81 FR 48493; 83 FR 6925; 85 FR 4769):
The driver was included in docket number FMCSA-2015-0347. The exemption is applicable as of February 12, 2022 and will expire on February 12, 2024.
As of February 16, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following three individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (83 FR 2311; 83 FR 18648; 85 FR 4769):
The drivers were included in docket number FMCSA-2017-0026. Their exemptions are applicable as of February 16, 2022 and will expire on February 16, 2024.
As of February 22, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following individual has satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (77 FR 539; 77 FR 10608; 79 FR 6993; 81 FR 15401; 83 FR 6925; 85 FR 4769):
The driver was included in docket number FMCSA-2011-0325. The exemption is applicable as of February 22, 2022 and will expire on February 22, 2024.
As of February 27, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following individual has satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (79 FR 1908; 79 FR 14333; 81 FR 15401; 83 FR 6925; 85 FR 4769):
The driver was included in docket number FMCSA-2013-0174. The exemption is applicable as of February 27, 2022 and will expire on February 27, 2024.
The exemptions are extended subject to the following conditions: (1) Each driver must undergo an annual physical examination (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a certified medical examiner (ME), as defined by § 390.5, who attests that the driver is otherwise physically qualified under § 391.41; (2) each driver must provide a copy of the ophthalmologist's or optometrist's report to the ME at the time of the annual medical examination; and (3) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file or keep a copy of his/her driver's qualification if he/her is self-employed. The driver must also have a copy of the exemption when
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the 91 exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the vision requirement in § 391.41(b)(10), subject to the requirements cited above. In accordance with 49 U.S.C. 31136(e) and 31315(b), each exemption will be valid for 2 years unless revoked earlier by FMCSA.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of establishment of public docket.
This Notice announces the establishment of FRA's emergency relief docket (ERD) for calendar year 2022. The designated ERD for calendar year 2022 is docket number FRA-2022-0001.
See the
On May 19, 2009, FRA published a direct final rule establishing ERDs and the procedures for handling petitions for emergency waivers of safety rules, regulations, or standards during an emergency situation or event. 74 FR 23329. That direct final rule became effective on July 20, 2009 and made minor modifications to 49 CFR 211.45 in FRA's Rules of Practice in 49 CFR part 211. Section 211.45(b) provides that each calendar year FRA will establish an ERD in the publicly accessible DOT docket system (available at
As detailed in § 211.45, if the FRA Administrator determines an emergency event as defined in 49 CFR 211.45(a) has occurred, or that an imminent threat of such an emergency occurring exists, and public safety would benefit from providing the railroad industry with operational relief, the emergency waiver procedures of 49 CFR 211.45 will go into effect.
Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Office of the Secretary (OST), DOT.
60-Day notice and request for comments.
The Department of Transportation (DOT) invites public comments on our intention to request Office of Management and Budget (OMB) approval for an information collection in accordance with the requirements of the Paperwork Reduction Act of 1995. The collection is necessary for administration of the “Discretionary Grants for Nationally Significant Multimodal Freight and Highway Projects (INFRA) Program”. INFRA grants support surface transportation infrastructure projects that have a significant local or regional impact.
Written comments should be submitted by March 11, 2022.
To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means:
•
•
•
For further information regarding this notice, please contact the Office of the Secretary via email at
New Collection. OMB number will be issued after the collection is approved.
This notice seeks comments on the proposed information collection, which will collect information necessary to support the ongoing oversight and administration of previous awards, the evaluation and selection of new applications, and the funding agreement negotiation stage for new awards.
The reporting requirements for the program is as follows:
To be considered to receive a INFRA grant, a project sponsor must submit an application to DOT containing a project narrative, as detailed in the Notice of Funding Opportunity. The project narrative should include the information necessary for the Department to determine that the project satisfies eligibility requirements as warranted by law.
Following the announcement of a funding award, the recipient and DOT will negotiate and sign a funding agreement. In the agreement, the recipient must describe the project that DOT agreed to fund, which is the project that was described in the INFRA application or a reduced-scope version of that project. The agreement also includes a project schedule, budget, and project-related climate change and equity planning and policies.
During the project monitoring stage, grantees will submit reports on the financial condition of the project and the project's progress. Grantees will submit progress and monitoring reports to the Government on a quarterly basis until completion of the project. The progress reports will include an SF-425, Federal Financial Report, and other information determined by the administering DOT Operating Administration. This information will be used to monitor grantees' use of Federal funds, ensuring accountability and financial transparency in the INFRA program.
For the purposes of estimating the information collection burden below for new applicants and awardees, the Department is assuming that for each year 2022-2024, the Department will review approximately 250 applications in Year 1, negotiate 35 funding agreements in Year 2, and begin quarterly project monitoring for 35 projects in Year 3. For a new applicant in 2022, their burden will be 100 hours in 2022, 6 hours in 2023, and 20 hours in 2024. See Table 1 below:
This Notice is separately estimating the information collection burden for projects awarded from 2016-2021. Approximately 60 of these projects are in the project monitoring phase in Year 1, while 40 projects are still negotiating funding agreements. In Year 2, approximately 30 of these projects will begin project monitoring, while approximately 20 projects will cease reporting once their projects are completed. In Year 3, 10 projects will begin project monitoring while 20 projects will cease reporting. The individual burden for a project awarded from 2016-2021 will depend on when they were selected, when they completed negotiation of their funding agreement, and when their project reaches completion. See Table 2 below:
The Department's estimated burden for this information collection is the following:
The following is detailed information and instructions regarding the specific reporting requirements for each report identified above:
To be considered to receive a INFRA grant, a project sponsor must submit an application to DOT containing a project narrative, as detailed in the Notice of Funding Opportunity. The project narrative should include the information necessary for the Department to determine that the project satisfies eligibility requirements.
Applications must be submitted through
The application should include a table of contents, maps, and graphics, as appropriate, to make the information easier to review. The Department recommends that the application be prepared with standard formatting preferences (
OST estimates that it takes approximately 100 person-hours to compile an application package for a INFRA application. Since OST expects to receive 250 applications per funding round, the total hours required are estimated to be 25,000 hours (100 hours × 250 applications = 25,000 hours) on a one-time basis, per funding round.
DOT enters a funding agreement with each recipient. In the agreement, the recipient describes the project that DOT agreed to fund, which is typically the project that was described in the INFRA application or a reduced-scope version of that project. The agreement also includes a project schedule, budget, and project related climate change and equity planning and policies.
OST estimates that it takes approximately 6 person-hours to respond to provide the information necessary for funding agreements. Based on previous rounds of INFRA awards, OST estimates that there will likely be 35 agreements negotiated per additional funding round. The total hours required are estimated to be 120 (6 hours × 35 agreements = 210 hours) on a one-time basis, per funding round.
OST requires each recipient to submit quarterly reports during the project to ensure the proper and timely expenditure of Federal funds under the grant.
The requirements comply with 2 CFR part 200 and are restated in the funding agreement. During the project monitoring stage, the grantee will complete Quarterly Progress Reports to allow DOT to monitor the project budget and schedule.
OST estimates that it takes approximately 5 person-hours to develop and submit a quarterly progress report. OST expects approximately 35 projects to be awarded per funding round, while grants awarded in prior years will reach completion during the year and would no longer need to submit these reports. OST expects recipients and awardees from 2016-2021 will require 3800 hours to submit project monitoring reports while new recipients and awardees will require 700 hours from 2022-2024.
Issued in Washington, DC.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is
Written comments should be received on or before March 11, 2022 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 60 days of publication of this notice to
The following paragraph applies to all the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
• 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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments submitted in response to this notice will be summarized and/or included in the ICR for OMB approval of the extension of the information collection; they will also become a matter of public record.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning Form 5495,
Written comments should be received on or before March 11, 2022 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 60 days of publication of this notice to
The following paragraph applies to all the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
• 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
Comments submitted in response to this notice will be summarized and/or included in the ICR for OMB approval of the extension of the information collection; they will also become a matter of public record.
Consumer Product Safety Commission.
Notice of proposed rulemaking.
The U.S. Consumer Product Safety Commission (Commission or CPSC) has determined preliminarily that there is an unreasonable risk of injury and death, particularly to children and teens, associated with ingestion of one or more high-powered magnets. To address this risk, the Commission proposes a rule, under the Consumer Product Safety Act, to apply to consumer products that are designed, marketed, or intended to be used for entertainment, jewelry (including children's jewelry), mental stimulation, stress relief, or a combination of these purposes, and that contain one or more loose or separable magnets. Toys that are subject to CPSC's mandatory toy standard are exempt from the proposed rule. Each loose or separable magnet in a product that is subject to the proposed rule and that fits entirely within CPSC's small parts cylinder would be required to have a flux index of less than 50 kG
Submit comments by March 28, 2022.
Submit written comments, identified by Docket No. CPSC-2021-0037, using the methods described below. CPSC encourages you to submit comments electronically, rather than in hard copy.
Michelle Guice, Compliance Officer, U.S. Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814; telephone (301) 504-7723; email:
The Commission issues this notice of proposed rulemaking (NPR) under sections 7 and 9 of the Consumer Product Safety Act (CPSA; 15 U.S.C. 2051-2089).
The proposed rule applies to consumer products that are designed, marketed, or intended to be used for entertainment, jewelry (including children's jewelry), mental stimulation, stress relief, or a combination of these purposes, and that contain one or more loose or separable magnets. Toys that are subject to CPSC's mandatory toy standard in 16 CFR part 1250 are exempt from the proposed rule, because that standard already includes requirements to address the magnet ingestion hazard in children's toys (
The proposed rule seeks to address the risk of injury or death associated with magnet ingestions, by requiring loose or separable magnets in subject magnet products to be either too large to swallow, or weak enough to reduce the risk of internal interaction injuries when swallowed. Under the proposed rule, each loose or separable magnet in a subject magnet product that fits entirely within CPSC's small parts cylinder must have a flux index of less than 50 kG
The information discussed in this preamble is derived from CPSC staff's briefing package for the NPR, which is available on CPSC's website at:
CPSC has taken several actions to address the magnet ingestion hazard, including issuing mandatory standards, working with voluntary standards organizations, initiating recalls and compliance actions, engaging in staff assessments of the hazard and potential ways to address it, and creating information campaigns.
On August 14, 2008, Congress enacted section 106 of the Consumer Product Safety Improvement Act (CPSIA; Pub. L. 110-314, 122 Stat. 3016 (Aug. 14, 2008)), codified at 15 U.S.C. 2056b.
Consistent with the mandate in section 106 of the CPSIA, the Commission adopted 16 CFR part 1250,
In 2012, the Commission initiated rulemaking to address the magnet ingestion hazard for products that do not fall under 16 CFR part 1250. The rule focused on magnet sets, which were involved in internal interaction injuries in children and teens, when ingested. 77 FR 53781 (Sep. 4, 2012) (notice of proposed rulemaking); 79 FR 59962 (Oct. 3, 2014) (final rule). The rule defined “magnet sets” as “any aggregation of separable magnetic objects that is a consumer product intended, marketed or commonly used as a manipulative or construction item for entertainment, such as puzzle working, sculpture building, mental stimulation, or stress relief.” The rule required each magnet in a magnet set, and each individual magnetic object intended or marketed for use with or as a magnet set, that fit completely within CPSC's small parts cylinder, to have a flux index of 50 kG
CPSC staff has actively participated in the development and revision of voluntary standards intended to address the magnet ingestion hazard. Since the development of ASTM F963 in 2007, CPSC staff has worked with ASTM to address hazardous magnets in children's toys, including working on multiple revisions to that standard. In addition, staff has participated actively in the ASTM Subcommittee F15.77 on Magnets, which published a voluntary standard on magnet sets in March 2021—ASTM F3458-21,
CPSC's Office of Compliance has investigated and recalled numerous magnet products involving the magnet ingestion hazard. From January 1, 2010 through August 17, 2021, CPSC conducted 18 such recalls, involving 23 firms/retailers, and totaling approximately 13,832,899 recalled units, including craft kits, desk toys, magnet sets, pencil cases, games, bicycle helmets, and maps, among others. Of these 18 recalls, 5 involved products that would not be subject to the proposed rule; specifically, 4 involved children's toys that are subject to the mandatory toy standard, and 1 involved trivets sold with cookware sets. Although these 5 recalls did not apply to products that would be subject to the rule, they also illustrate the magnet ingestion hazard. In addition to recalls, CPSC has addressed the products that present a magnet ingestion hazard through manufacturers' voluntary cessation of sales.
In addition to staff's assessments of the magnet ingestion hazard for previous rulemakings and compliance efforts, staff also assessed the hazard and potential ways to address it in response to a petition for rulemaking. On August 17, 2017, CPSC received a petition requesting that the Commission initiate rulemaking to address the hazard associated with magnet sets when “ingested, aspirated, or otherwise inserted into” the body.
In addition to raising awareness of the magnet ingestion hazard through publicized recalls, CPSC has drawn attention to the hazard through safety alerts and public safety bulletins. CPSC maintains a “Magnets Information Center” website,
Like CPSC, other countries have recognized the internal interaction hazard associated with magnet ingestions. Several of these countries have issued mandatory requirements to address the hazard. To understand how other countries have addressed magnet ingestions, staff reviewed the mandatory requirements for Canada, Australia, New Zealand, and the European Commission.
Canada's regulation for toys, SOR/2018-138, includes requirements for magnetic toys intended for children under 14 years old.
Canada has also specified
In addition, in November 2012, Australia adopted a permanent ban of consumer goods containing 2 or more separable or loose magnetic objects, where at least 2 of the magnetic objects each separately fit entirely within a small parts cylinder (specified in AS/NZS ISO 8124.1) and each have a flux index greater than 50 kG
In addition, in January 2013, New Zealand issued a temporary ban
Subject magnet products are “consumer products” that the Commission has authority to regulate
Section 9 of the CPSA specifies the procedure the Commission must follow to issue a consumer product safety standard under section 7.
Under section 9 of the CPSA, an NPR must include the text of the proposed rule, any alternatives the Commission proposes, and a preliminary regulatory analysis.
• A preliminary description of the potential benefits and costs of the rule, including benefits and costs that cannot be quantified, and the analysis must identify who is likely to receive the benefits and bear the costs;
• a discussion of the reasons any standard or portion of a standard submitted to the Commission in response to an ANPR was not published by the Commission as the proposed rule or part of the proposed rule;
• a discussion of the reasons for the Commission's preliminary determination that efforts submitted to the Commission in response to an ANPR to develop or modify a voluntary standard would not be likely, within a reasonable period of time, to result in a voluntary standard that would eliminate or adequately reduce the risk of injury addressed by the proposed rule; and
• a description of alternatives to the proposed rule that the Commission considered and a brief explanation of the reasons the alternatives were not chosen.
In addition, to issue a final rule, the Commission must make certain findings and include them in the rule.
• The degree and nature of the risk of injury the rule is designed to eliminate or reduce;
• the approximate number of consumer products subject to the rule;
• the need of the public for the products subject to the rule and the probable effect the rule will have on the cost, availability, and utility of such products; and
• the means to achieve the objective of the rule while minimizing adverse effects on competition, manufacturing, and commercial practices.
• That the rule, including the effective date, is reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with the product;
• that issuing the rule is in the public interest;
• if a voluntary standard addressing the risk of injury has been adopted and implemented, that either compliance with the voluntary standard is not likely to result in the elimination or adequate reduction of the risk of injury, or there is unlikely to be substantial compliance with the voluntary standard;
• that the benefits expected from the rule bear a reasonable relationship to its costs; and
• that the rule imposes the least burdensome requirement that prevents or adequately reduces the risk of injury.
The proposed rule applies to “subject magnet products,” which are consumer products that are designed, marketed, or intended to be used for entertainment, jewelry (including children's jewelry), mental stimulation, stress relief, or a combination of these purposes, and that contain one or more loose or separable magnets (subject magnet products). Toys that are subject to 16 CFR part 1250,
Subject magnet products include a wide variety of consumer products. Magnets in subject magnet products typically are small, powerful, magnetic balls, cubes, cylinders, and other shapes that can be used to create jewelry (such as necklaces, bracelets, and simulated piercings), and can be aggregated to make sculptures, for use as desk toys, and as other building sets. One common example of a subject magnet product is magnet sets intended for users 14 years and older. Consistent with the Commission's 2014 rule, magnet sets are aggregations of separable magnetic objects that are marketed or commonly used as a manipulative or construction items for entertainment, such as puzzle working, sculpture building, mental stimulation, or stress relief. Magnet sets often contain hundreds to thousands of loose, small, high-powered magnets. Another example of a subject magnet product is jewelry with separable magnets, such as jewelry-making sets and faux magnetic piercings/studs. Additional examples include products commonly referred to as “executive toys,” “desk toys,” and “rock magnets” (rock-shaped magnets), intended for amusement of users 14 years and older.
Subject magnet products are available in a variety of shapes (
Magnets in subject magnet products have a variety of compositions, such as alloys of neodymium, iron, boron (NIB); ferrite/hematite; aluminum, nickel, cobalt (AlNiCo); and samarium and cobalt (SmCo). NIB and SmCo magnets are often referred to as “rare earth” magnets because neodymium and samarium are “rare earth” elements found on the periodic table. Most subject magnet products that staff identified were made from NIB. NIB is typically used in smaller magnets used for magnet sets and magnetic jewelry sets, and ferrite/hematite is typically used in larger magnets, such as rock-shaped magnet toys. The magnetized cores of subject magnet products are
Staff found that 5 mm diameter NIB magnets (the most common size identified in magnet ingestion incidents) typically have strong magnetic properties, ranging between 300 and 400 kG
Some subject magnet products are “children's products.” The definition of “children's products,” and the requirements applicable to them, are described in section XII. Testing, Certification, and Notice of Requirements, below. To summarize, a “children's product” is a consumer product that is “designed or intended primarily for children 12 years of age or younger.” 15 U.S.C. 2052(a)(2). Most subject magnet products are not children's products because the proposed rule excepts from the standard products that fall under the mandatory toy standard, which applies to playthings intended for users under 14 years old. However, some subject magnet products are children's products because, although they are intended for users 12 years old and younger, they do not fall under the toy standard because they are not playthings. One example of a subject magnet product that could be a children's product and not a toy is children's jewelry.
Magnet products intended for the purposes covered in the proposed rule largely entered the market in 2008, with significant sales beginning in 2009. Of the various products covered by the proposed rule, magnet sets have been particularly concerning to CPSC, given their popularity, uses for amusement and jewelry, their involvement in ingestion incidents, and the large number of loose, small, high-powered magnets in the sets. For this reason, CPSC's previous efforts to address the magnet ingestion hazard largely have focused on magnet sets. Accordingly, much of the information staff has about the market for subject magnet products focuses on magnet sets,
From 2009 through mid-2012, most magnet set sellers were retailers with physical stores, such as bookstores, gift shops, and other outlets. In contrast, nearly all current marketers (firms or individuals) of magnet sets sell through internet sites, rather than physical stores. Some of these internet sites are operated by importers, but most sellers (in terms of distinct firms or individuals, if not unit sales) sell through their stores operated on the sites of other internet retailer platforms.
In 2018, CPSC contracted with Industrial Economics, Incorporated (IEc) to examine the market for magnet sets. IEc found a total of 69 sellers of magnet sets on internet platforms in late 2018. IEc also identified 10 manufacturers and 2 retailers.
In both 2018 and 2020, staff found that many magnet-set sellers were located domestically, or in China or Hong Kong. In 2018, approximately 57 percent of magnet set sellers on one internet platform fulfilled orders domestically, whereas, in 2020, this declined to 25 percent. In 2018, approximately 25 percent of magnet set sellers on another internet platform were domestic, whereas, in 2020, this increased to 87 percent. Non-domestic sellers were primarily in China and Hong Kong. In addition to internet retailers based in the United States, consumers can also purchase a wide variety of magnet sets using online retailers based in China. Magnet sets purchased from foreign internet retailers may be shipped to consumers directly from China, or from warehouse facilities located domestically.
Retail prices of subject magnet products are about $20 per unit, on average. Magnet sets comprised of spheres or cubes with smaller dimensions (2.5 mm to 3 mm) typically retail at lower prices.
As indicated above, CPSC staff primarily has information about magnet sets, however, additional products are also subject to the proposed rule. CPSC staff is aware of magnets marketed online as jewelry, jewelry-making sets, and faux studs/piercings, as well as entertainment products, such as “desk toys” and “executive toys.” CPSC requests comments about unit sales and other market information about subject magnet products, particularly for products other than magnet sets.
CPSC staff analyzed reported fatalities, reported nonfatal incidents and injuries, and calculated national estimates of injuries treated in U.S. hospital emergency departments (EDs) that were associated with ingestion of subject magnet products. Staff also assessed the health outcomes associated with these incidents, as well as various characteristics of the incidents.
To evaluate magnet ingestion incidents, staff reviewed reports in the National Electronic Injury Surveillance System
To evaluate magnet ingestion incidents in NEISS, staff started by identifying magnet ingestion cases in the NEISS database with treatment dates
From the remaining data set, staff categorized incidents by magnet type. Based on the products identified in NEISS reports, or the description of the products, staff organized cases into the following categories: Magnet sets, magnet toys, jewelry, science kits, home/kitchen, ASTM F963 magnet toys, and unidentified. The criteria staff used to categorize incidents into these groups are as follows:
•
•
•
•
•
•
•
As the descriptions above indicate, “magnet toys” and “ASTM F963 magnet toys” refer to two different types of products. “Magnet toys,” as used throughout this preamble, refers to products described as toys, but that did not include indications that the product was marketed for users under 14 years old. In contrast, “ASTM F963 magnet toys” refers to products that staff identified as toys marketed for children under 14 years old; as such, these products are subject to ASTM F963, and they do not fall under the scope of the proposed rule.
With respect to the science kit category, staff identified only one case that involved a product described as a science kit. There was insufficient information about the product to determine whether it was a children's toy subject to ASTM F963, an educational product, or a subject magnet product. Because of this lack of information, and the possibility that it was a children's toy or educational product, staff considered this case outside the scope of the proposed rule.
Staff considered the following categories to be subject magnet products: Magnet sets, magnet toys, and jewelry; these are referred to collectively as “amusement/jewelry.” These categories include incidents in which the report identified a subject magnet product as being ingested, or the incident report provided information about the product, such as characteristics or use patterns, that were sufficient for staff to reasonably conclude that the product fell in a certain product type category. Staff considered cases in the following categories to be outside the scope of the proposed rule: Science kits, home/kitchen, and ASTM F963 magnet toys; these are referred to collectively as “exclusions.” Incidents in the unidentified category did not provide sufficient information to identify the magnet product category, however, they did indicate that a magnet was ingested, and the product had characteristics and use patterns that could be consistent with subject magnet products. Section
Table 1 provides the number of cases in each product type category, and the combined categories reported by NEISS participating hospitals.
As Table 1 indicates, of the incidents for which staff could identify a product type category, most incidents involved magnet toys, followed by magnet sets, and jewelry. For 74 percent of incidents, staff could not identify the product type category.
Using the information from the sample of NEISS participating hospitals, staff derived estimates of the number of magnet ingestions treated in U.S. hospitals nationally from 2010 through 2020. For staff to generate national estimates using NEISS data, all of the following reporting criteria must be met: The coefficient of variation (CV) cannot exceed 0.33, there must be at least 20 sample cases, and there must be at least 1,200 estimated injuries. Because of the large portion of NEISS incidents in the unidentified product type category, to meet these criteria, it was necessary to combine the amusement/jewelry and unidentified categories to generate national estimates, and it was not possible to generate national estimates for individual product categories. Thus, the national estimates provided in the rest of this section include incidents in both the amusement/jewelry and unidentified categories of NEISS data. Although the national estimates include magnet ingestion cases in the unidentified product type category, there are several reasons why staff concludes that most magnet ingestion incidents in the unidentified product type category involved subject magnet products, including incident data about known product types, trend data, and recall data. Section
Table 2 provides the estimated number of ED-treated magnet ingestions for the combined categories.
Table 3 provides the national estimates of ED-treated magnet ingestions, by year.
There were significantly fewer ED-treated magnet ingestions in 2015 than in any of the following years: 2010, 2011, 2012, 2017, and 2018. Likewise, there were significantly fewer ED-treated magnet ingestions in 2016 than in any of the following years: 2011, 2017, and 2018. Overall, 2014 through 2016 had the lowest number of estimated ED-treated magnet ingestions. Table 4 compares these middle 3 years (
Table 5 provides estimated ED-treated magnet ingestions, by age group.
Table 6 provides the estimated number of ED-treated magnet ingestions, by sex.
Table 7 provides the estimated number of ED-treated magnet ingestions, by sex and age group. Staff used 8 years old to delineate older and younger children because, as discussed in section V. Relevant Existing Standards, several voluntary standards provide less stringent requirements for magnet products intended for users 8 years and older.
Table 8 provides the estimated number of ED-treated magnet ingestions, by disposition.
As Table 8 indicates, approximately 80 percent of estimated ED-treated magnet ingestions are treated and released, and approximately 19 percent are hospitalized or treated and transferred to another hospital. Some portion of cases that report the victim being treated and released may have resulted in later hospitalization because magnet ingestion patients are often sent home initially to monitor for natural passage, and the NEISS data typically capture only one part of the treatment process—the ED visit—and do not typically provide information about treatment after the initial ED visit.
CPSC staff also reviewed CPSRMS data for magnet ingestion incidents. CPSRMS reports commonly contain more information about the incident, product, and victims than NEISS reports because CPSRMS reports may provide photos and websites with detailed narratives and medical documents, whereas, NEISS reports contain only brief narratives from the ED visit. However, CPSRMS data do not provide a complete count of all incidents that occurred during a period, and unlike NEISS data, CPSRMS cannot be used for statistical estimates or to draw conclusions about trends. Rather, CPSRMS data provide a minimum number of incidents that occurred during a period and provide details about incidents.
CPSC staff identified 284 magnet ingestion incidents in CPSRMS that were reported to have occurred between January 1, 2010 and December 31, 2020. Data collection is ongoing for CPSRMS, and is considered incomplete for 2019 and after, so CPSC may receive additional reports for those years in the future. Staff categorized these cases similarly to the NEISS incidents, however, there are some minor differences in the criteria because CPSRMS reports typically contained more product-specific information than NEISS reports. Based on the products identified in the CPSRMS reports or the descriptions of the products, staff organized cases into the following categories: Magnet sets, magnet toys, jewelry, science kits, home/kitchen, ASTM F963 magnet toys, and unidentified. The criteria staff used to categorize incidents into these groups are as follows:
• Magnet Sets: Magnets from sets of loose, as-received magnets that are marketed or commonly used as a manipulative or construction item for entertainment, such as puzzle working, sculpture building, mental stimulation, or stress relief. These items met at least one of the following criteria:
○ Referred to as a magnet set;
○ identified as a magnet set through product name;
○ included photos identifying the product; or
○ other available information provided reasonable certainty that the product was a magnet set (
Brand was indicated for most of these incidents. Incidents were excluded from this grouping if a medical professional identified the product as a magnet set, but the investigator and victim indicated that they were unable to identify the product as a magnet set.
• Magnet Toys: Magnets from products referred to as toys or games. This category includes products for which the manufacturer-intended user of the toy was 14 years or older, or was unknown, and excludes cases that positively identified toys subject to ASTM F963 (
• Jewelry: Magnets described as jewelry and not definitively identified as a magnet set. Most of these cases involve magnets described as a bracelet, necklace, or piercing jewelry.
• Science Kits: Magnets from products identified as a science kit or magnetic/electrical experimental set. (No reported incidents fit in this category.)
• Home/Kitchen: Magnets from products such as non-toy magnet decorations, shower curtains, hardware, and kitchen products.
• ASTM F963 Magnet Toys: Magnets from toys subject to ASTM F963 (
• Unidentified: Unidentified magnet product type.
Like NEISS product type categories, “magnet toys” and “ASTM F963 magnet toys” refer to two different types of products. Staff categorized as “magnet toys” products described as toys, which did not have evidence of having been marketed for users under 14 years old. In contrast, “ASTM F963 magnet toys” are toys staff identified as marketed for children under 14 years old, making them subject to ASTM F963, and outside the scope of the proposed rule.
Consistent with the NEISS data analysis, staff considered the following categories to be subject magnet products: Magnet sets, magnet toys, and jewelry; these are referred to collectively as “amusement/jewelry.” These categories include incidents in which the report identified a subject magnet product as being ingested, or the incident report provided information about the product, such as
Table 9 provides the number of reported magnet ingestions in each category.
As Table 9 shows, of the incidents for which staff could identify a product type category, most involved magnet sets, followed by magnet toys, and jewelry. Fewer cases involved products that are not subject magnet products (
To further analyze CPSRMS data, staff combined the following categories—magnet sets, magnet toys, jewelry, and unidentified. Staff included the unidentified product type category in this analysis because, as noted for NEISS data, there are several reasons that staff concludes that most magnet ingestion incidents in the unidentified product type category involved subject magnet products, including incident data about known product types, trend data, and recall data. Section
Figure 1 shows the reported CPSRMS magnet ingestion incidents, by year of incident and product type category.
Although CPSRMS data cannot be used to draw statistical conclusions, this data suggests that magnet ingestion incidents increased in 2012, 2019, and 2020, and were lowest in 2015 and 2016, consistent with the results seen in the NEISS data.
Figure 2 shows reported magnet ingestions, by victim age and product type category.
Again, although CPSRMS data cannot be used to draw statistical conclusions, the data suggest that children and teens of all ages ingest magnets, and similar to the NEISS data, most magnet ingestions involve children 5 years or older, with almost half of the ingestions involving children 8 years or older.
Table 10 provides the disposition of reported magnet ingestion cases, by product type category.
As Table 10 indicates, of the 284 ingestions reported to have occurred between January 1, 2010 and December 31, 2020, the vast majority resulted in hospitalization, and three resulted in death. The remaining “other” dispositions include all remaining reported incidents that did not report either hospitalization or death.
In analyzing CPSRMS magnet ingestion incidents, CPSC staff identified at least 124 cases that resulted in some form of surgery, including laparoscopy, laparotomy, appendectomy, cecostomy, enterotomy, colostomy, cecectomy, gastrotomy, jejunostomy, resection, and transplant. Numerous additional cases resulted in less-invasive procedures than surgery, such as endoscopies and colonoscopies, and could have resulted in surgery if the magnets had not been retrieved soon after ingestion. In 108 cases, the reports specifically described the magnets internally attracting through bodily tissue, and for other cases, there was insufficient information to determine if the surgeries were a result of the magnetic properties.
The CPSRMS data above indicate that staff identified three fatal magnet ingestion incidents that were reported to have occurred during the period staff used for incident data analysis—January 1, 2010 and December 31, 2020. However, in total, CPSC is aware of seven deaths involving the ingestion of hazardous magnets between November 24, 2005 and January 5, 2021.
In looking at annual magnet ingestion incidents, staff noted a considerable change in magnet ingestion rates before, during, and after the Commission's vacated rule on magnet sets. As discussed above, the Commission issued a final rule in October 2014 that applied to magnet sets, which are a subset of the subject magnet products addressed in this proposed rule. The magnet sets rule aimed to address the magnet ingestion hazard and consisted of size and strength limits consistent with the requirements in this proposed rule. The magnet sets rule took effect in April 2015 and remained in effect until it was vacated by the U.S. Court of Appeals for the Tenth Circuit Court in November 2016. CPSC's assessment of incident data, as well as other researchers' assessments of NEISS data, and national poison center data, indicate that magnet ingestion cases significantly declined during the years in which the magnet sets rule was announced and in effect, compared to the periods before and after the rule.
As Table 3,
To assess these trends further, staff grouped years in relation to the vacated magnet sets rule, using the following periods: 2010 through 2013 (prior to the announcement of the rule), 2014 through 2016 (when the final rule was announced and in effect
Although CPSRMS data cannot be used to draw statistical conclusions, the data also suggest a similar decline in incidents for the period when the magnet sets rule was announced and in effect. Table 11 shows CPSRMS-reported magnet ingestions, by period, using incidents categorized as amusement/jewelry and unidentified product types, consistent with the NEISS analysis, above.
Consistent with NEISS trends shown in Table 3, Table 11 shows that CPSRMS data also reflect an appreciable decline in magnet ingestion incidents during the period when the magnet sets rule was announced and in effect (2014-2016), compared with earlier and more recent periods, and nearly equivalent incident rates during the periods both before and after the rule.
Other researchers analyzing NEISS data made similar findings. One study
Another study
Researchers
These analyses raise relevant considerations for this proposed rule. For one, the marked decline in incidents during the period when the magnet sets rule was announced and in effect suggests that a large portion of magnet ingestion incidents involve magnet sets. Because that rule applied only to magnet sets, the fact that incidents significantly declined during the pendency of that rule indicates that magnet sets were involved in most of the incidents. This is useful information, given the lack of details regarding product types involved in many magnet ingestion incidents. In addition, these analyses indicate the current need to address the magnet ingestion hazard. Magnet ingestion incidents have significantly increased in recent years, showing a heightened need to address the hazard. Finally, these analyses suggest that a mandatory standard is necessary to effectively reduce the risk of injuries and death associated with magnet ingestions. Before, during, and after the magnet sets rule, CPSC and other groups have worked to raise awareness of the magnet ingestion hazard, and CPSC has taken steps to address the hazard though information campaigns, recalls, and voluntary standards work. However, the only appreciable decline in magnet ingestion incidents occurred during the period when the mandatory standard for magnet sets was announced and in effect.
As explained above, magnet ingestion incident reports often include limited information for staff to identify the type of product involved in the magnet ingestion. Caregivers and medical providers may know that a magnet was ingested, but may not know from what type of product the magnet came. This differs from many consumer products that are readily identifiable when involved in an incident and report. NEISS data, in particular, tend to provide limited information with which to identify the product involved in magnet ingestions. This may be because NEISS data are collected through hospital EDs. At hospital EDs, medical professionals may not know what product was the source of the magnet ingestion, and are focused on information needed to treat the victim (
As Table 1, above, shows, of the 1,072 magnet ingestion incidents identified in NEISS, 74 percent (793 incidents) did not provide sufficient information for staff to identify the type of product involved. As Table 9, above, shows, of the 284 magnet ingestion incidents identified in CPSRMS, 15 percent (43 incidents) did not provide sufficient information for staff to identify the type of product involved. However, staff does have some information about the incidents in the unidentified product type category—specifically, these incidents involved ingestion of one or more magnets, and included product characteristics and use patterns that could be consistent with subject magnet products.
To account for the lack of product identification in many magnet ingestion incidents, staff analyzed magnet ingestion incident data in several ways. For one, staff provided information about all magnet ingestion cases. Aggregated information for all of the in-scope, out-of-scope, and unidentified product categories indicates that magnet ingestions, in general, are an issue, and have increased in recent years. This indicates the propensity for children and teens to ingest magnets, and it demonstrates the increasing risk of injury and death as magnet ingestion cases increase.
Staff also categorized incidents into specific product groups, based on information that was available in incident reports. For incidents that provided information to help identify the product type, the data revealed that six categories of products were involved in magnet ingestions—magnet sets, jewelry, magnet toys, science kits, ASTM F963 magnet toys, and home/kitchen magnets. For some of the incidents in these categories, there was specific information about the product—such as brand names—that allowed staff to determine the product involved in the incident. For other incidents in these categories, the product was referred to as a specific type (
Staff also aggregated these categories into in-scope and out-of-scope groupings. Staff combined incidents from the magnets sets, magnet toys, and jewelry categories as “amusement/jewelry” and combined incidents from the home/kitchen, ASTM F963 magnet toys, and science kit categories as “exclusions.” Grouping several product type categories together allowed staff to generate national estimates of ED-treated magnet ingestions, to provide an idea of the number of ingestions nationally, and the relative involvement of in-scope and out-of-scope products, which helps identify the magnitude of the risk and the potential benefits of the rule to reduce that risk.
In addition, staff combined the amusement/jewelry and unidentified categories to conduct more detailed analyses. Because the proposed rule applies to amusement and jewelry products, the amusement/jewelry category of incidents is informative.
First, the incident data discussed in this preamble supports the conclusion that many of the magnet ingestion incidents in the unidentified product type category actually involved subject magnet products. Of the NEISS magnet ingestion incidents for which staff could identify a product category, the primary products involved were magnet sets, magnet toys, and jewelry; far fewer incidents involved ASTM F963 magnet toys, home/kitchen magnets, or science kits (see Table 1, above). The same was true for CPSRMS incidents (see Table 9, above), for which far fewer incidents were in the “unidentified” category. Given this consistency across data sets, it is reasonable to conclude that the relative involvement of magnet product types in magnet ingestions applied to the incidents that lacked product identification as well.
Second, magnet ingestion rates before, during, and after the vacated rule on magnet sets suggest that a significant portion of magnet ingestion cases involve magnet sets. As discussed above, CPSC's assessment of incident data, as well as other researchers' assessments of NEISS data, and national poison center data, indicate that magnet ingestion cases significantly declined during the years the magnet sets rule was announced and in effect, compared to the periods before and after the rule. Magnet sets were the only products subject to that rule. As such, the significant decline in incidents during that rule, and the significant increase in incidents after that rule was vacated, strongly suggest that many magnet ingestion incidents involve magnet sets. Thus, it is reasonable to assume that many of the incidents in the unidentified product category involved magnet sets. Moreover, the definition of “magnet sets” in the vacated rule was largely equivalent to the description of amusement products in the present proposed rule (
Third, incident data and recalls regarding magnets in children's toys further support the conclusion that magnet ingestions categorized as “unidentified” products are largely subject magnet products. As discussed above, ASTM F963 magnet toys make up only a small portion of magnet ingestion incidents where the product can be identified. It is reasonable to assume that this holds true for unidentified products in magnet ingestions, as well. Recall information further supports this conclusion. Recalls of children's toys involving the magnet ingestion hazard have declined substantially since the toy standard took effect. As explained above, ASTM F963 was announced as the mandatory standard for toys in 2008, and it took effect in 2009. From 2006 through 2009, CPSC issued more than a dozen recalls of children's toys, due to the ingestion hazard associated with loose or separable, small, powerful magnets.
Taken together, these factors support the conclusion that most magnet ingestion incidents, including those in the unidentified product type category, involved products that fall within the magnet sets, magnet toys, and jewelry categories, and not the science kit, home/kitchen, or ASTM F963 magnet toys categories. For these reasons, staff included magnet ingestion incidents in the unidentified product type category in many of its analyses; to exclude such incidents likely would vastly underrepresent ingestions of subject magnet products.
Magnets are unique among ingested foreign bodies because of their intrinsic ability to attract to one another or to ferromagnetic objects. Assuming the same elemental composition, a magnet with large physical dimensions and mass can exhibit stronger attractive forces than a magnet with small physical dimensions and mass. Similarly, magnets coupled together can exhibit greater attractive strengths than individual magnets. One mechanism of injury following magnet ingestion involves separate magnets in adjacent tissue walls (
Health threats posed by magnet ingestion include pressure necrosis, volvulus, bowel obstruction, bleeding, fistulae, ischemia, inflammation, perforation, peritonitis, sepsis, ileus, ulceration, aspiration, and death, among others. The normal functions of the gastrointestinal (GI) tract, including peristalsis, are not likely to dislodge magnets that are attracted to each other through component tissues.
The time between magnet ingestion and injury varies and depends on several factors, such as the number of ingested magnets; awareness of the magnet ingestion by caregivers; awareness that magnet ingestion is hazardous; whether multiple ingested magnets interact with each other inside of the body through tissue structures; and the configuration of coupled magnets, relative to involved tissue structures. Incident reports describe injuries from internal magnet interaction through tissue taking anywhere from days to months to progress to a stage at which caregivers seek medical attention. There have been several efforts to develop medical devices using magnets to deliberately compress and necrose
Ambiguous symptomatology following magnet ingestion that results in an internal interaction injury may complicate the timely delivery of medical care. Symptoms related to magnet ingestion may appear flu-like and include vomiting, fever, and abdominal pain, among others. Symptoms following magnet ingestion have been mistaken for a virus, ear infection, and bronchitis, among others. Medical professionals who know of the magnet ingestion may be able to minimize or avoid injury by promptly removing the magnets.
Volvulus is another internal interaction hazard associated with magnet ingestion. Volvulus is an obstructive twisting of the GI tract. Volvulus is often accompanied by abdominal pain, distended abdomen, vomiting, constipation, and bloody stools. If left untreated, volvulus may lead to bowel ischemia, perforation, peritonitis, and death. Volvulus following magnet ingestion has been linked to fatal outcomes. In the United States, CPSC is aware of one death of a 20-month-old child who ingested magnets from a toy construction set, which caused volvulus, and one death of a 2-year-old child who ingested multiple magnets, resulting in small intestine ischemia secondary to volvulus. In addition, CPSC is aware of one death of an 8-year-old child in Poland, due to small intestine ischemia secondary to volvulus, after the victim ingested magnets that resulted in necrosis, toxemia (blood poisoning), hypovolemic shock, and eventually cardiopulmonary failure.
Like outcomes related to volvulus, small bowel ischemia can lead to local tissue necrosis, perforation, and subsequent peritonitis. Small intestine ischemia was implicated in the death of a 19-month-old child following ingestion of multiple magnets. Bowel obstruction, often a consequence of volvulus, is associated with abdominal cramps, vomiting, constipation, and distention. With respect to the relationships among local capillary and intraluminal pressures and magnet ingestions, subsequent outcomes include possible blockage of local blood and nutrient supply; progressive pressure necrosis of the involved tissues; and local inflammation, ulceration, and tissue death, with putative outcomes such as perforation (hole) or fistula in the GI tract. If left untreated, or otherwise unnoticed, such events can progress into infection, sepsis, and death. The obstruction from the trapped tissue can elicit vomiting, and the local mucosa irritation may stimulate diarrhea. Advancing pressure necrosis of the involved tissues can lead to necrosis and subsequent leakage of the bowel contents into the peritoneal cavity.
Another example of the potential health outcomes associated with magnet ingestion is a case in which an asymptomatic 4-year-old child sustained several fistulae in the intestines that required surgical repair after ingesting magnets. Fistulae are abnormal passages between channels in the body that are associated with increased mortality. Fistulae may enable the leakage of gut contents into adjacent tissue structures or abdominal cavities, which can lead to infection, inflammation, perforation, sepsis, and possibly death. Fistulae may also bypass portions of the GI tract, thus undermining normal GI function.
Another potential health outcome of magnet ingestions is ulcerations. For example, one case involved a 28-month-old child who experienced stomach ulcerations after ingesting 10 magnets and receiving treatment with medication after the endoscopic removal and natural passage of the magnets. Untreated ulcers may require surgical intervention if they progress to perforation, and a perforated bowel may lead to leakage from the GI tract. Several magnet ingestion incident reports highlight the threat of perforation with possible outcomes such as peritonitis. Peritonitis is an inflammation of the peritoneum, a membrane lining of the abdominal cavity, which may be associated with leakage from the GI tract that can lead to sepsis. Sepsis is the body's response to severe infection, and it is associated with elevated rates of morbidity and mortality that can be mitigated with prompt treatment. Treatment of abdominal sepsis may require repair of a leaky GI tract.
Another potential health risk from ingested magnets is an aspiration threat. For example, in one reported case, a 3-year-old child ingested multiple magnets, two of which were found attracting to each other on opposing surfaces of the pharyngoepiglottic fold in the throat, presenting an immediate aspiration threat given the proximity to the airway. Aspiration of magnets has also been reported elsewhere in medical literature. Foreign body aspiration presents a risk of airway obstruction, ventilatory difficulty, choking, hypoxic-ischemic brain injury, pulmonary hemorrhage, and death, among other health outcomes.
When ingested magnets are identified, x-ray radiography, fluoroscopy, computed tomography (CT) scans, or ultrasound
Endoscopy may be used to retrieve ingested magnets from the stomach, duodenum, esophagus, pylorus and cecum (via colonoscopy), or other areas. Endoscopy may also be used to treat bowel obstruction secondary to magnet ingestion. Endoscopy is associated with a risk of bleeding from mucosal shearing or tearing that is elevated in the presence of anemia. There is also risk of adverse cardiopulmonary events (
Colonoscopy is a common endoscopic procedure performed via the anus and shares many of the same risks as endoscopy. Laryngoscopy—a medical procedure to evaluate the upper aerodigestive tract—is used to investigate suspected magnets lodged in the throat. Associated risks of laryngoscopy include esophageal perforation, airway compromise, bleeding, dysphagia, and fever, among others. Nasal endoscopy may be useful to treat magnets embedded in the nose. Nasal endoscopy is associated with risks of mucosal irritation, minor hemorrhage, and overt hemorrhage.
Surgical interventions may be necessary to treat magnet ingestions when less invasive procedures, such as endoscopy or bowel cleanout, are clinically inappropriate or unsuccessful. In one example, in which a 5-year-old child ingested magnets, endoscopy failed to retrieve all of the magnets, and the remaining magnets were recovered via laparotomy with appendectomy. Abdominal surgeries, such as laparotomy (abdominal incision) and laparoscopy (fiber-optic visualization of the viscera via abdominal incision), that involve abdominal incisions and manipulation of abdominal organs are associated with the risk of adhesions that can cause pain, bowel obstructions that may require additional surgical intervention, female infertility, and bowel injury. For example, 6 months after a 2-year-old child underwent enterotomy and gastrostomy to remove 26 magnets from her jejunum and stomach, the child developed bowel adhesions that caused obstructions and required treatment with surgical adhesiolysis to cut the adhesions. Possible complications associated with laparotomy include pneumonia, cardiac complications, surgical site infection, wound dehiscence (rupture), urinary tract infection, respiratory tract infection, venous thromboembolism, kidney failure, heart and GI tract complications, septicemia, and death. Emergency laparotomies may be more prone to complications than elective laparotomies. For example, a 6-year-old child who ingested 20 magnets underwent a 20-day hospital stay to treat surgical wound infections following exploratory laparotomy with small bowel resection and appendectomy to retrieve the magnets.
Appendectomy may also result from magnet ingestions, and is commonly achieved via laparotomy or laparoscopy. Pain, wound infections, and intra-abdominal abscesses are possible following both laparoscopic and open appendectomies. Laparotomy may be accompanied by incisions of the stomach (gastrotomy) or intestines (enterotomy) to retrieve ingested magnets. Complications from surgical enterotomies, or incisions into the intestine, may be similar to those of inadvertent enterotomies, which can occur during anastomosis procedures and include leakage, intra-abdominal abscesses, and death.
Surgical resection of the bowel may be performed to remove necrotic portions of the bowel, secondary to magnet ingestion. Small bowel resection is associated with risks of infection, fistulae, peritonitis, abscess, sepsis, and wound dehiscence secondary to leaky anastomoses. There is also the possibility of impairment to the intrinsic nutrient absorption functions of the bowel, depending on the resection location. End-to-end surgical anastomoses used to restore bowel continuity following resection are associated with the risk of leakage, intra-abdominal abscess, and death.
Complications associated with surgery to treat magnet ingestion have also included pancreatitis and additional hospitalization, additional surgery to treat incisional hernia, and the need for a lifelong feeding tube, among others. Endotracheal general anesthesia may be required for surgical treatments of magnet ingestion. Possible complications associated with general anesthesia include nausea, vomiting, sore throat, dental damage, myocardial ischemia or infarction, heart failure, cardiac arrest, arrhythmia, atelectasis (lung collapse), aspiration, bronchospasm, neurological effects, and renal effects, among others.
In addition to the medical procedures necessary to treat magnet ingestions, and the risks associated with those procedures, ingested magnets present unique challenges for medical professionals. For example, technical precision is reduced, and technical difficulty increases when ingested magnets attract to the metallic instruments used to retrieve them. In one example case, ingested magnets in the throat of a 3-year-old child suddenly attracted to the optic graspers inserted to retrieve the foreign bodies.
Staff conducted a detailed analysis of incident data to identify hazard patterns and characteristics associated with magnet ingestion incidents, and staff also considered developmental and behavioral factors relevant to the hazard. These considerations helped inform the scope of products that need to be addressed in the proposed rule and the types of requirements that would be effective at reducing the magnet ingestion hazard.
Table 12 provides the ages of victims involved in magnet ingestion incidents, from both the NEISS and CPSRMS data sets. The table includes incidents in the
The youngest victim for which an age was reported was 6 months old; the oldest age reported was 54 years old. Approximately 20 percent of the NEISS incidents and CPSRMS incidents involved victims under 3 years old. This is consistent with developmental and behavioral factors—typically, foreign body ingestions peak for children between 6 months and 3 years old, and 2-year-old children generally are mobile and unlikely to be supervised directly at all times. Children of these ages are commonly cited in reports involving ingestion of inedible objects, given their likelihood of orally exploring their environment and their limited ability to comprehend hazards. For these and other reasons, toys with small parts must have a choking hazard warning for children under 3 years old.
As Table 12 indicates, approximately 60 percent of NEISS incidents and 56 percent of CPSRMS incidents involved victims 5 years old and older. This age group is important because one option CPSC and voluntary standards groups have considered to address the magnet ingestion hazard is child-resistant (CR) packaging, which is packaging that is designed or constructed to be significantly difficult for children under 5 years old to open.
Table 12 also shows that approximately 40 percent of NEISS incidents and 45 percent of CPSRMS incidents involved victims 8 years old and older. This is noteworthy because several voluntary standards exempt magnet products intended for users 8 years and older from size and strength requirements, instead requiring only warnings on such products. These standards seemingly assume that users 8 years old and older are less likely to ingest magnets or are able to understand and heed warnings about the magnet ingestion hazard better than younger children. However, the frequency of incidents involving users 8 years and older suggests that this is not the case.
As indicated above, Table 12 includes incidents in the magnet sets, magnet toys, jewelry, and unidentified product categories, indicating that these incidents did not involve products that are intended for children under 14 years old.
In reviewing incident data, staff identified the following patterns in how the magnets were being used at the time of ingestion:
• Playing—These cases involved ingestion of magnets while users were playing, fidgeting, orally exploring the magnets (
• Jewelry—These cases involved magnets victims were using as jewelry at the time of the incident, such as bracelets, necklaces, and simulated piercings (
• Intentionally ate—In these cases, victims reportedly swallowed magnets on purpose (
• Other—These cases involved identified actions that did not fit the
• Unknown—In these cases, it was unclear what led to the magnet ingestion.
Table 13 provides the use patterns involved in magnet ingestion incidents, from both the NEISS and CPSRMS data sets. The table includes incidents in the magnet sets, magnet toys, and jewelry categories, as well as incidents in the unidentified product type category.
As Table 13 shows, in both data sets, for incidents in which the use pattern could be identified, magnets were commonly used as playthings at the time of ingestion, followed by magnets used as jewelry. This supports the need to address amusement and jewelry products in the proposed rule. In addition, these data indicate that the use pattern is unknown for many magnet ingestions, suggesting that victims are too young to report the use pattern and ingest magnets while outside caregiver supervision.
Figure 3
As Figures 3 and 4 show, for incidents in which the use pattern was identified, the majority of victims accidentally ingested the magnets. A common example of these accidental ingestions is children using the magnets in or around their mouths when the magnets unexpectedly rolled to the back of their throats and were ingested, in some cases by swallow reflex. This is consistent with normal child development, including exploration and the likelihood that children will be drawn to magnets aesthetically, and to their invisible attraction and repulsion properties. Consistent with developmental factors, younger children, particularly those under 8 years old, were more likely than older children to be involved in reports of intentional magnet ingestion (only 4 reports of intentional ingestion involved children 8 years old and older). The frequency of accidental ingestions suggests that safety messaging may have limited effectiveness in addressing magnet ingestions, because children and caregivers are unlikely to anticipate and appreciate the likelihood of accidental ingestion of magnets.
Victims 8 years old and older were more likely than younger ages to swallow magnets while simulating piercings. It is foreseeable for this age group to use magnets as jewelry in or around their mouths, because experimentation and peer influence are common determinants of behavior for this age group. Older children and teens often value acceptance by peers more than obeying parental guidelines, and social influences and peer pressure can drive adolescent behavior more strongly than their own independent thought processes. The subject magnet products offer a seemingly safe and reversible way to try out lip, tongue, cheek, and nose piercings. If these children see their peers performing this activity, they may feel compelled to act similarly, even if they are aware of the risks. Furthermore, older children and early adolescents are at a developmental stage in which they test limits and bend rules.
Staff also assessed incident data for information about how victims and caregivers behaved after a magnet ingestion event, including whether caregivers became aware of the ingestion, and the time between ingestion and treatment. Staff found that the invasiveness of medical interventions was often associated with the length of delay between the ingestion event and correct medical treatment. At least 56 of the 257 CPSRMS incidents (22 percent) involved a delay of several days between ingestion and correct treatment, with some delays spanning months. At least 16 additional incidents (6 percent) involved a delay of 1 day.
One common cause of delays was caregivers being unaware of the ingestion, resulting in delayed hospital visits and subsequent misdiagnoses. In many cases, particularly those involving children under 8 years old, caregivers were not aware that magnets were ingested. These cases often involved ingestions that were not witnessed by caregivers, and where the children were unable or unwilling to communicate what happened.
Another common cause of delays was caregivers misunderstanding the hazard, such as expecting the magnets to pass naturally. Whether ingested magnets
Staff also examined incident data to determine how and from whom victims acquired magnets they ingested. Because most NEISS reports (97 percent) did not include sufficient information to determine the source of access, staff focused on CPSRMS incidents.
Table 14 shows the source of access for the 257 CPSRMS magnet ingestion incidents. The table includes incidents in the magnet sets, magnet toys, and jewelry categories, as well as incidents in the unidentified product type category.
As Table 14 shows, of the 135 cases with a known source of access, most cases involved magnets that belonged to family members of the victim (44 percent), followed by magnets that victims acquired from friends, classmates, daycares, or schools (30 percent), and magnets purchased for the victim (19 percent). A small number of incidents involved magnets purchased by the victim (4 percent), or that the victim found outside (3 percent).
Victims under 8 years old typically gained access to magnets that belonged to family members, such as siblings, parents, and relatives. Magnets from family members were usually found on floors, in or on furniture, in bags, and affixed to surfaces (
Staff also reviewed incident reports for information about product warnings and age labels on the ingested products, to determine if such warnings were present and considered by the victims and caregivers.
Staff further assessed incident data to determine the age of victims in incidents where the ingested magnets were purchased for or by the victims. Of the 133 cases with a known source of access and known victim age, about 23 percent involved magnets purchased for or by victims under 14 years old, including 9 cases in which the magnets were purchased for victims under 8 years old. Despite the ages of these victims, these cases involved products that were not marketed for children under 14 years old, and were not subject to the toy standard. For example, in one case, a parent purchased a magnet set for a 9-year-old child, despite there being clear and repeated warnings about the magnet ingestion hazard and warnings to keep the product away from children. In another case, a caregiver gave the same product to a 5-year-old child, believing the product to be harmless, and believing that swallowed magnets would pass naturally. The
Based on technical analysis and examination of incident reports, online and on-package marketing, and consumer reviews for subject magnet products, staff identified the following factors that likely contribute to children accessing magnet products that are intended for older users: Caregivers and victims underestimate the potential severity of the hazard; social pressures from children, other family members, and friends; consumers see subject magnet products or similar products marketed to children; consumers see other children handling subject magnet products or similar products without incident; consumers read product reviews about other children handling subject magnet products or similar products without incident; and caregivers underestimate the likelihood that children or teens would ingest a magnet.
This information has implications for the types of requirements that are likely to effectively reduce the magnet ingestion hazard. For one, it indicates that requirements that rely on caregiver intervention, such as safety messaging and packaging requirements, are unlikely to adequately address the hazard. As the data suggest, caregivers cannot easily manage children's and teen's access to magnet products, since children and teens often access them outside the home. There are additional reasons why these requirements are unlikely to adequately address the hazard. As these data suggest, many incidents involve children and teens accessing ingested magnets without their packaging, making safety messaging and packaging ineffective. In addition, many incidents involve products that included safety messaging and age recommendations that consumers did not follow. Similarly, these data suggest that the toy standard, alone, cannot adequately address the magnet ingestion hazard because children and teens purchase, receive, and access magnets from products that are not intended for their ages.
CPSC identified six existing safety standards that address the magnet ingestion hazard. Each of these standards applies to certain products, and none of the standards apply to all subject magnet products. Four of the standards are domestic voluntary standards:
• ASTM F963-17,
• ASTM F2923-20,
• ASTM F2999-19,
• ASTM F3458-21,
In addition, two are international safety standards:
• EN 71-1: 2014,
• ISO 8124-1: 2018,
This section describes these standards and provides CPSC staff's assessment of their adequacy to address injuries and deaths associated with magnet ingestions. Several of the standards include requirements that do not relate to magnets, however, this analysis focuses on those provisions that are relevant to the magnet ingestion hazard.
ASTM F963 was originally approved in 1986, and has been revised numerous times since then. In 2007, ASTM updated the standard to include requirements to address the magnet ingestion hazard in children's toys. In subsequent revisions, ASTM added further requirements for toys containing magnets. As explained above, in 2008, section 106 of the CPSIA made ASTM F963 a mandatory consumer product safety standard; in accordance with that mandate, the Commission adopted 16 CFR part 1250, which currently incorporates by reference ASTM F963-17, which is the most recent version of the standard. ASTM approved ASTM F963-17 on May 1, 2017 and published it in August 2017. CPSC staff participates in the ASTM F15.22 subcommittee that is responsible for this standard.
ASTM F963-17 applies to “toys,” which the standard defines as objects designed, manufactured, or marketed as playthings for children under 14 years old. As such, the standard does not apply to products that are intended for users 14 years or older, or products that would not be considered playthings. When ASTM adopted the provisions regarding magnets, it explained that the purpose of the requirements was to address magnet ingestion incidents resulting in serious injury or death by identifying magnets and magnetic components that can be readily swallowed (section A9.4).
The standard specifies that toys may not contain a loose as-received “hazardous magnet” or a loose as-received “hazardous magnetic component.” In addition, toys may not liberate a “hazardous magnet” or “hazardous magnetic component” after specified use-and-abuse testing, which consists of soaking under water, cycling attachment and detachment, drop testing, torque testing, tension testing, impact testing, and compression testing. The standard excepts from the requirements “magnetic/electrical experimental sets” intended for children 8 years and older—such products need only comply with warning requirements, discussed below.
The standard defines a “hazardous magnet” as a magnet that is a small object (
ASTM F963-17 describes the small parts cylinder in section 4.6 and illustrates it in Figure 3; to be a small object, the magnet must fit entirely within the cylinder. The small parts cylinder depicted in ASTM F963-17 is the same as the small parts cylinder in CPSC's regulations, at 16 CFR 1501.4. Sections 8.25.1 through 8.25.3 describe the test methodology to measure the maximum absolute flux of a magnet and to calculate the flux index. A flux index is a calculated value of magnetic density and size. The flux index of a magnet is calculated by multiplying the square of the magnet's maximum surface flux density (in KGauss (kG)) by its cross-sectional area (in mm
ASTM F963-17 does not include specific labeling requirements for toys containing loose as-received hazardous magnets or hazardous magnetic components, except for “magnetic/electrical experimental sets” intended
CPSC staff does not consider ASTM F963-17 capable of adequately reducing the risk of injury and death associated with magnet ingestions because of the scope of products it covers.
The size and strength requirements in ASTM F963-17 are consistent with the requirements proposed in this rule for subject magnet products. Section VI. Description of and Basis for the Proposed Rule, below, discusses these size and strength requirements and their ability to address the hazard. Staff considers the size and strength requirements adequate to address the hazard. However, ASTM F963-17 only applies to products designed, manufactured, or marketed as playthings for children under 14 years old; it does not apply to products intended for older users or products that would not be considered playthings. Accordingly, staff does not believe that compliance with the standard is likely to adequately reduce the magnet ingestion hazard.
As the incident data indicate, children and teens commonly access and ingest magnets from products intended for older users. Both NEISS and CPSRMS data indicate that the most common products identified in magnet ingestions were magnet sets and magnet toys, which are products that are intended for users 14 years or older, or where the intended user age was unknown, but there were no indications that the product was intended for users under 14 years. Despite the involvement of products intended for users 14 years and older, the vast majority of magnet ingestion incidents involved children under 14 years old. For example, among CPSRMS incidents for which the victim's age was known, the most common ages that ingested magnet sets were 2, 8, 9, and 10 years old.
The sources from which children access ingested magnets further illustrates the need to address magnets in products intended for older users. For example, according to CPSRMS data, children and teens commonly access ingested magnets that belong to other family members, in the home, from friends, or loose in the environment, suggesting their access is not limited to toys intended for them.
In addition, ASTM F963-17 does not apply to products that are not intended to be playthings. Both NEISS and CPSRMS data indicate that many products involved in magnet ingestion incidents are described as jewelry, and that children of various ages ingest magnet jewelry (
As such, ASTM F963-17, alone, is not sufficient to address the magnet ingestion hazard, because it does not impose any requirements on products intended for users 14 years or older or jewelry, which are known to be involved in many magnet ingestion incidents.
ASTM first issued ASTM F2923 in 2011. The current version of the standard is ASTM F2923-20, which was approved on February 1, 2020, and published in March 2020.
ASTM F2923-20 applies to “children's jewelry,” which is jewelry designed or intended primarily for use by children 12 years old or younger. The standard defines “jewelry” as a product that is primarily designed and intended as an ornament worn by a person. The standard does not apply to toy jewelry or products intended for a child when playing. The standard includes requirements that are intended to address ingestion, inhalation, and attachment hazards associated with children's jewelry that contains a hazardous magnet or hazardous magnetic component. The standard defines a “hazardous magnet” and “hazardous magnetic component” be referencing the definition in ASTM F963, except that the standard exempts chains that are longer than 6 inches from the definition of “hazardous magnetic component.”
ASTM F2923-20 prohibits children's jewelry from having an as-received hazardous magnet or hazardous magnetic component. The standard excepts from this requirement children's jewelry intended for children 8 years and older consisting of earrings, brooches, necklaces, or bracelets—such products need only comply with warning requirements, discussed below. In addition, the standard prohibits children's jewelry from liberating a hazardous magnet or hazardous magnetic component after the use-and-abuse testing specified in ASTM F963.
ASTM F2923-20 does not include specific labeling requirements for children's jewelry containing hazardous magnets or hazardous magnetic components, except for children's jewelry intended for children 8 years and older that consists of earrings, brooches, necklaces, or bracelets. These products are exempt from the performance requirements and need to include a warning that addresses the magnet ingestion hazard. Instructions that accompany the product must also include these warnings.
CPSC staff does not consider ASTM F2923-20 capable of adequately reducing the risk of injury and death associated with magnet ingestions. Although staff considers the size and strength requirements in the standard adequate to address the magnet ingestion hazard, the standard excepts certain children's jewelry from these performance requirements, and the scope of products covered by the rule makes the standard insufficient to address the magnet ingestions, generally.
The first issue with the standard is that it excludes from the size and strength requirements for magnets children's jewelry that is intended for children 8 years and older that consists of earrings, brooches, necklaces, and bracelets. Applying only warning requirements to these products is not adequate to reduce the magnet ingestion hazard. As the incident data indicate, almost half of magnet ingestion incidents involve children 8 years and older, and children and teens, particularly in this age group, commonly used magnets as jewelry at the time of ingestion. Warning requirements, alone, are not adequate to
The second issue with the standard is that it applies only to jewelry that is designed or intended primarily for use by children 12 years old or younger. As such, it does not impose requirements on magnet sets or magnet toys intended for users 14 years and older, which are the most common product types identified in magnet ingestion incidents. The standard also does not apply to jewelry intended for users over 12 years old. Although incident data do not indicate the intended user age of jewelry products involved in ingestions, the data indicate that children and teens of various ages ingested magnets intended for users 14 years and older when using the magnets as jewelry, making it is reasonable to conclude that jewelry intended for users over 12 years old poses an ingestion hazard for children and teens.
For these reasons, ASTM F2923-20, on its own, is not sufficient to address the magnet ingestion hazard because it does not impose requirements on magnet sets, magnet toys, or certain jewelry, which are shown to be involved in many magnet ingestion incidents.
ASTM first issued ASTM F2999 in 2013; the current version of the standard is ASTM F2999-19, which ASTM approved on November 1, 2019, and published in November 2019.
ASTM F2999-19 establishes requirements and test methods for certain hazards associated with adult jewelry, including magnets. The standard defines “adult jewelry” as jewelry designed or intended primarily for use by consumers over 12 years old. It defines “jewelry” as a product primarily designed and intended as an ornament worn by a person, and provides several examples, such as bracelets, necklaces, earrings, and jewelry craft kits where the final assembled product meets the definition of “jewelry.” The standard defines a “hazardous magnet” as “a magnet with a flux index >50 as measured by the method described in Consumer Safety Specification F963 and which is swallowable or a small object.”
ASTM F2999-19 does not include any performance requirements for adult jewelry that contains magnets; it specifies only labeling requirements, discussed below.
ASTM F2999-19 states that “adult jewelry that contains hazardous magnets as received should include a warnings statement which contains the following text or substantial equivalent text which clearly conveys the same warning.” Thus, rather than the mandatory language ASTM standards typically use (
CPSC staff does not consider ASTM F2999-19 capable of adequately reducing the risk of injury and death associated with magnet ingestions. For one, the standard does not include any requirements for adult jewelry containing magnets—rather, it suggests complying with the magnet provisions. As incident data indicate, many magnet ingestion incidents involve products used as jewelry, and children and teens accessing products intended for older users. This demonstrates the need for a mandatory requirement for adult jewelry.
In addition, the only provisions in the standard that address magnet ingestions are warnings. As the discussion of ASTM F3458-21, below, covers in detail, warning requirements, alone, are not adequate to address the magnet ingestion hazard because caregivers and children commonly do not heed warnings, and children and teens commonly access magnets that are separated from their packaging, where warnings are provided.
The scope of the standard also makes it insufficient to adequately address the magnet ingestion hazard. Because it applies only to jewelry designed or intended primarily for use by consumers over 12 years old, the standard does not impose requirements on magnet sets or magnet toys intended for users 14 years and older, which are the most common products identified in magnet ingestion incidents. It also does not impose requirements on jewelry intended for users 12 years old and younger. Although the incident data do not indicate the intended user age of jewelry involved in magnet ingestions, because many incidents involve children 12 years old and younger, it is reasonable to conclude that jewelry intended for such users pose the magnet ingestion hazard for children and teens.
Another potential issue with ASTM F2999-19 is that it defines a hazardous magnet, for purposes of determining whether the warning provisions apply, as having a flux index greater than 50 kG
For these reasons, ASTM F2999-19, alone, is not sufficient to address the magnet ingestion hazard because it does not impose performance requirements on magnet sets, magnet toys, or certain jewelry, which are involved in many magnet ingestion incidents.
In 2019, ASTM Subcommittee F15.77 on Magnets began work to develop a standard for magnet sets intended for users 14 years and older. On February 15, 2021, ASTM approved ASTM F3458-21, and published the standard in March 2021. ASTM F3458-21 consists of marketing, packaging, labeling, and instructional requirements for magnet sets intended for users 14 years and older.
Since March 2019, CPSC staff has participated actively in Subcommittee F15.77 on Magnets. During the development of ASTM F3458-21, CPSC staff raised several concerns to the subcommittee about the developing standard, including the reliance on marketing, packaging, labeling, and warnings requirements, rather than performance requirements to limit the size and strength of magnets. The assessment of the standard, below, and Tab C of the NPR briefing package, detail these concerns; Tab C also includes a letter CPSC staff sent the subcommittee, expressing these concerns. Based on these issues, CPSC considered the standard inadequate to address the magnet ingestion hazard and voted against the final version of the standard that was ultimately adopted.
In May 2021, after ASTM F3458-21 was adopted, Subcommittee F15.77 on Magnets voted to form a task group to
ASTM F3458-21 aims to minimize the hazards to children and teens associated with ingesting small, powerful magnets in magnet sets that are intended for users 14 years and older. The standard defines a “magnet set” as “an aggregation of separable magnetic objects that are marketed or commonly used as a manipulative or construction item for puzzle working, sculpture building, mental stimulation, education, or stress relief.” It also defines a “small, powerful magnet” as an “individual magnet of a magnet set that is a small object” and has a flux index of 50 kG
The standard does not include size and strength limits for magnet sets themselves. The standard includes performance criteria in the form of test methods to determine if a product is a “small, powerful magnet,” and test methods for assessing label permanence; however, the standard does not include performance requirements preventing small, powerful magnets from being used in magnet sets. Instead, ASTM F3458-21 includes requirements for instructional literature, sales/marketing, labeling, and packaging, discussed below. These requirements seek to inform and encourage consumers to keep magnets away from children.
ASTM F3458-21 requires magnet sets intended for users 14 years and older to come with instructions that address assembly, maintenance, cleaning, storage, and use. The instructions must include warnings (as specified below), the manufacturer's suggested strategy for counting and storing magnets, a description of typical hazard patterns (
The standard prohibits manufacturers from knowingly marketing or selling magnet sets intended for users 14 years and older to children under 14 years old, and requires them to “undertake reasonable efforts” (with examples) to ensure the product is not marketed or displayed as a children's toy. For online sales, manufacturers must “undertake reasonable efforts” (with examples) to ensure that online sellers do not sell magnet sets intended for users 14 years and older to children under 14 years. When selling directly to consumers online, manufacturers must include warnings (as specified below) and instructional literature about the hazard pattern.
ASTM F3458-21 requires magnet sets intended for users 14 years and older to bear warnings on the retail packaging and “permanent storage container,” which the standard defines as a container designed to hold the magnet set when it is not in use. At a minimum, the warnings must address the hazard associated with magnet ingestions, direct users to keep the product away from children, and provide information about medical attention. The standard includes an example warning label, and specifies design and style requirements for the warning label. In addition, the standard requires the label to be permanent and provides a test method for assessing label permanence.
The standard requires magnet sets intended for users 14 years and older to be sold with or in a permanent storage container. The permanent storage container must include a way to verify that all the magnets have been returned to the container. In addition, the standard requires the permanent storage container to be re-closeable and include one of the following means of restricting the ability to the open the container: (1) The container requires two consecutive actions, the first of which must be maintained while the second is carried out, or requires two separate and independent simultaneous actions to fully release, withstanding specified testing; (2) the container requires one action that requires at least 15 lbf to open or requires at least 4 inches lbf of torque to open, withstanding specified testing; or (3) the container meets the performance requirements in 16 CFR 1700.15 and the testing requirements of 16 CFR 1700.20 (which are poison preventing packaging standards, adopted under the Poison Prevention Packaging Act
CPSC staff does not consider ASTM F3458-21 capable of adequately reducing the risk of injury and death associated with magnet ingestions. For one, the limited scope of products subject to the standard is inadequate to address the hazard. The standard only applies to magnet sets intended for users 14 years and older. As such, it imposes no requirements on other products intended for users 14 years and older, or on jewelry (both children's and adult), which are shown to be involved in magnet ingestion incidents.
In addition, the types of requirements in the standard make it inadequate to address the magnet ingestion hazard. For a detailed discussion of the weaknesses of warnings, instructional, sales/marketing, and packaging requirements to address the magnet ingestion hazard, see Tab C of the NPR briefing package. The following is an overview of these weaknesses.
Throughout the standard development process, CPSC staff emphasized that performance requirements for magnets are necessary to adequately address the magnet ingestion hazard. Such requirements typically include size and strength requirements for the magnets themselves, as in the toy standard and this proposed rule. However, ASTM F3458-21 does not include performance requirements to prevent magnet sets intended for users 14 years and older from containing small, powerful magnets, and instead, relies on requirements to inform and encourage consumers to keep magnets away from children. As incident data indicate, children and teens access magnet products, including magnet sets, that are intended for older users, making it important to address the magnet ingestion hazard for magnet sets intended for users 14 years and older. However, safety messaging (
One factor that weighs against consumers heeding safety warnings is their perception that magnet products present a low safety risk. Magnets in products intended for amusement or jewelry are likely to appear simple, familiar, and non-threatening to children, teens, and caregivers. Incident data and consumer reviews demonstrate that consumers commonly recognize these types of magnetic products as suitable playthings for children, which undermines the perceived credibility of warnings that state the magnets are hazardous for children. The availability of children's toys that are similar to subject magnet products intended for users 14 years and older may also affect consumers' perception of the hazard because the products appear similar, and some are marketed for children. Once familiar with a product, consumers tend to generalize across similar products, and the more familiar consumers are with a product, the less likely they are to look for, or read, warnings and instructions. If caregivers observe their child, or their child's peers using a product or a similar product without incident, caregivers may conclude that their child can use the product safely, regardless of what the warnings state. This is also true for recommendations from others, including online reviews of products, which can influence the likelihood of consumers disregarding warnings. Staff reviewed numerous consumer reviews of subject magnet products, and found that many indicated that consumers purchased the product for a child, or that their children started playing with it, despite the product not being intended for users under 14 years old. Similarly, when a child or teen repeatedly uses the product in or around their mouth without ingesting a magnet or experiencing consequences from ingestion, they and their caregivers are likely to conclude that the hazard is not likely to occur, or is not relevant to them.
Another reason that safety messaging has limited effectiveness is that consumers misunderstand the hazard. For small, powerful magnets, the internal interaction hazard is a hidden hazard, so consumers are unlikely to anticipate and appreciate the risk to children, especially older children and teens who do not have a history of mouthing or ingesting inedible objects. However, of the magnet ingestion cases that identify whether the ingestions were intentional or accidental, the majority describe accidental ingestions, which is much more difficult for consumers to appreciate and prevent.
Similarly, there are developmental factors that predispose older children and teens to disregard warnings and use the small, powerful magnet products in and around their mouths and noses. As discussed above, older children and teens are at a developmental stage in which they test limits and bend rules. Experimentation and peer influence are common determinants of behavior for this age group. Small, powerful magnets offer a seemingly safe and reversible way to try out lip, tongue, cheek, and nose piercings; and if children and teens see their peers doing this, they may act similarly, despite being aware of the risks.
In addition, consumers misunderstand the progression of symptoms associated with magnet ingestions, which may lead them to disregard warnings. As incident reports show, many children, teens, and caregivers wrongly assume that, when ingested, magnets will pass through the body without causing harm. This contributes to delays between ingestion and correct treatment, increasing the risks associated with magnet ingestion.
Another factor that limits the potential effectiveness of safety messaging is how children and teens obtain magnets they ingest. As incident data show, children and teens commonly obtain ingested magnets loose in their environments, from friends, or at school, where the product is separated from any packaging or instructions that bear warnings. Because small, powerful magnets themselves are too small to bear warnings, these children and teens, and their caregivers, may not be made aware of the hazard.
Finally, safety messaging has been ineffective at reducing the magnet ingestion hazard, to date. As discussed above, and in Tab C of the NPR briefing package, staff has examined dozens of incident reports that indicate children and teens obtained and ingested small, powerful magnets even when the product was marketed and prominently labeled with warnings about the hazard and stated that the product was not appropriate for children. For example, of the CPSRMS incidents reported to have occurred between January 1, 2010 and December 31, 2020, staff examined at least 44 incidents in which a child ingested a magnet product that included warnings about the hazard and cautioned to keep the product away from children. Similarly, of 41 magnet sets for which staff assessed consumer reviews, 35 percent of the reviews mentioned use by children, despite 68 percent including a warning about the magnet ingestion hazard.
Another indication of the ineffectiveness of safety messaging to address the magnet ingestion hazard, to date, is the upward trend in magnet ingestion cases in recent years, despite many years of consumer awareness campaigns. As discussed above, for many years, CPSC has drawn attention to the magnet ingestion hazard through recalls, safety alerts, public safety bulletins, and rulemaking activity. In addition, there have been numerous public outreach efforts by health organizations and other consumer advocacy groups to warn consumers about the internal interaction hazard posed by small, powerful magnets. Despite these efforts, magnet ingestion incidents have increased in recent years.
In addition, the features provided for in ASTM F3458-21 to make the packaging difficult for children to open would not be effective at preventing older children and teens from accessing the magnets in the packaging. For example, the third packaging option provided in the standard allows the packaging to meet the requirements in 16 CFR 1700.15 and 1700.20. Those provisions are intended to make packaging significantly difficult for children under 5 years old to open within a reasonable time. Thus, such packaging does not prevent all children under 5 years old from opening it, particularly given ample time, and it is not intended to prevent any children 5 years and older from opening the packaging. As the incident data indicate, the majority of magnet ingestion incidents involved victims 5 years and older, making this packaging ineffective at restricting their access. Similarly, for the alternative packaging options in the standard, children and teens are likely to have cognitive and motor skills sufficient to access the products.
Even if CR packaging features did prevent children and teens from opening the packaging, the effectiveness of packaging to address the hazard would rely on consumers correctly repackaging all the magnets after every use, which is likely unrealistic. For one,
In addition, the small size of the magnets and large number of magnets (particularly in some magnet sets and magnetic jewelry sets), make it unlikely that consumers would return all the magnets to the packaging after every use. The small size and often large quantity of magnets in a set make locating and counting the magnets after every use, to ensure they are all returned to the package, not feasible or realistic. For example, staff has identified products that were involved in magnet ingestion incidents that consisted of thousands of 2.5 mm diameter magnets. Staff has found that it is common for magnets to be flicked away from one another when they are being handled, such as when separating magnets, resulting in magnets being dropped. These actions are foreseeable, particularly for magnets intended for fidgeting and building. In examining magnet sets, staff found that many sets are sold with extra pieces, in part, because losing magnets is expected. In addition, many incident reports and consumer reviews of magnet sets mention lost magnets. Given the large number of magnets often included in a set, their small size, and their tendency to be separated and lost, it is unlikely that consumers will use CR packaging effectively. The time and effort necessary to locate, assemble, and repackage such small and numerous magnets is likely to be beyond what consumers are willing to spend.
For these reasons, ASTM F3458-21, alone, is not sufficient to address the magnet ingestion hazard because it does not impose performance requirements on magnets themselves, and it does not apply to several products that are involved in magnet ingestion incidents.
The European standard applies to children's toys, which are products intended for use in play by children younger than 14 years old. The requirements regarding magnets in EN 71-1: 2014 are essentially the same as in ASTM F963-17—any loose as-received magnet and magnetic component must either have a flux index less than 50 kG
Thus, the provisions addressing the magnet ingestion hazard in EN 71-1: 2014 are largely the same as in ASTM F963-17. As discussed above, for ASTM F963-17, CPSC staff does not consider these provisions capable of adequately reducing the risk of injury and death associated with magnet ingestions because of the limited scope of the standard. Because the standard only applies to toys intended for children under 14 years old, it does not impose any requirements on products intended for older users, or products that would not be considered playthings. As the incident data indicate, magnet ingestion incidents include children and teens ingesting products intended for older users, and ingesting jewelry, neither of which this standard addresses.
This standard applies to toys, which are products intended for use in play by children under 14 years old. The standard requires any loose as-received magnet and magnetic component to either have a flux index less than 50 kG
Thus, the provisions addressing the magnet ingestion hazard in ISO 8124-1: 2018 are largely the same as in ASTM F963-17. As discussed above, for ASTM F963-17, CPSC staff does not consider these provisions capable of adequately reducing the risk of injury and death associated with magnet ingestions because of the limited scope of the standard. Because the standard only applies to toys intended for children under 14 years old, it does not impose any requirements on products intended for older users, or products that would not be considered playthings. As the incident data indicate, magnet ingestion incidents include children and teens ingesting products intended for older users, and ingesting jewelry, neither of which this standard addresses.
CPSC has limited information about the extent to which products comply with existing standards. Based on staff's analysis, only a small number of magnet ingestion incidents for which a product type could be identified involved children's toys subject to ASTM F963, which provides some indication that children's toys commonly comply with the standard. Of the magnet ingestion incidents that involved children's toys, staff identified six incidents that involved internal interaction of the magnets through body tissue, again suggesting there may be a high level of compliance with the standard. None of the products in these six incidents complied with the magnet requirements in ASTM F963.
CPSC staff does not have detailed information about the extent to which products comply with ASTM F2923, F2999, or F3458. Incident reports commonly do not provide enough detail for staff to identify the specific product (
The proposed rule applies to “subject magnet products,” defined as “a
The proposed rule only applies to “consumer products,” as defined in the CPSA, which are “article[s], or component part[s] thereof, produced or distributed (I) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise.” 15 U.S.C. 2052(a)(1). Consumer products do not include products that are not customarily produced or distributed for sale to, or for the use or consumption by, or enjoyment of, a consumer.
The proposed rule also defines “hazardous magnets” as “a magnet that fits entirely within the cylinder described in 16 CFR 1501.4 and that has a flux index of 50 kG
To determine the appropriate scope of products to cover in the proposed rule to adequately reduce the risk of injury and death associated with magnet ingestions, CPSC staff considered magnet ingestion incident data, magnet use patterns, magnet ingestion rates when other mandatory standards took effect, recalls, child development and behavioral patterns, the uses of hazardous magnets in consumer products, consumer reviews for products with loose or separable hazardous magnets, existing standards, contributions from stakeholders in the ASTM Subcommittee F15.77 on Magnets, and relevant research literature. The definition of “subject magnet products” consists of several elements that include and exclude certain products from the scope of the proposed rule. This section discusses the reasons for the criteria in the definition. The basis for the elements of the proposed definition of “hazardous magnets” is discussed below, as part of the basis for the performance requirements in the proposed rule.
Subject magnet products are limited to “consumer products,” as that term is defined in the CPSA. Accordingly, any product that is not customarily produced or distributed for sale to or use by a consumer, is not within the scope of the proposed rule. This could include professional, industrial, or commercial products that would not customarily be available to or used by consumers. This element of the definition is included because CPSC's authority under the CPSA is limited to consumer products, and because products that are not customarily available to consumers would not be likely to pose a magnet ingestion hazard to children and teens.
Subject magnet products are limited to products that contain “loose or separable magnets.” This is because magnets that are not loose or separable, such as non-removable magnets that are integrated into or attached to a product, would not pose an ingestion hazard. For example, a magnetic clasp attached to a necklace would not pose an ingestion hazard because it is connected to a larger object, making it unlikely to be swallowed.
In addition, the definition of “subject magnet products” specifically refers to magnets. Although not explicit in the definition, this refers to permanent magnets, which are magnets that maintain their magnetic field after being removed from the magnetizing source. Staff does not consider it necessary to specify that the standard applies to permanent magnets. For one, products that lose their magnetism when separated from their magnetizing source (
The definition also specifies that subject magnet products include “one or more” loose or separable magnets; thus, they include products with only a single loose or separable magnet. There are two reasons for including this in the definition of “subject magnet products.” First, an individual magnet can interact internally through body tissue with an unrelated magnet or a ferromagnetic object, resulting an internal interaction injury. Thus, even a product with a single loose or separable magnet poses the same internal interaction hazard as products with multiple magnets. Second, subject magnet products may be sold as individual magnets or with a choice of how many magnets to include in a set. Staff identified magnets sets on the market that are sold with extra pieces to serve as replacements for magnets lost from the set. Thus, magnets sold individually may be intended as, or may be used as, part of a set, posing the risk of children and teens ingesting more than one magnet. Limiting the proposed rule to products that include two or more loose or separable magnets would not address the hazard posed by a single magnet, and would leave a gap in the standard to allow firms to sell magnets individually, without having to comply with the proposed rule. Moreover, applying the proposed rule to products that include a single loose or separable magnet is consistent with the toy standard in 16 CFR part 1250 because ASTM F963-17 applies to products that contain one or more hazardous magnets.
The definition of “subject magnet products” is limited to products that are designed, marketed, or intended to be used for entertainment, jewelry, mental stimulation, stress relief, or a combination of these purposes. Essentially, this means that the proposed rule applies to products that are designed, marketed, or intended for amusement or jewelry. This section discusses the reasons CPSC considers it appropriate to focus on magnet products intended for amusement and jewelry to reduce the risk of injury and death associated with magnet ingestions. The focus on amusement and jewelry products is also consistent with
Subject magnet products that are jewelry also include a variety of products, such as jewelry intended for adults or for children, jewelry making sets, and magnetic piercings and studs. For example, staff has identified necklaces made of numerous small magnets, in multiple shapes, that consumers can rearrange in various configurations.
As the incident data show, products categorized as amusement and jewelry, by far, are the most common product categories identified in magnet ingestion incidents. Table 1 shows that magnet toys, by far, were the most common product type category identified
CPSRMS data similarly show that magnet sets, magnet toys, and jewelry are the primary categories of products identified in magnet ingestions reports. As Table 9 shows, magnet sets, by far, were the most common product type identified
The severity of health outcomes associated with magnet ingestions provides further support for focusing on amusement and jewelry products in the proposed rule. Fatalities are one indication of the severity of health outcomes. As discussed above, CPSC identified seven fatalities that involved the ingestion of hazardous magnets between November 24, 2005 and January 5, 2021, 5 of which occurred in the United States. CPSC was able to definitively identify one of the products involved in these incidents (a 2005 death in the United States), which was a children's toy building set, a product intended for amusement. In addition, the most recent incident (a 2021 death in the United States) involved a magnet set, which is also a product intended for amusement. Of the remaining five incidents, three incidents (a 2013 death in the United States and two deaths in other countries) involved magnets that matched the characteristics of magnets typically found in magnet sets, but did not identify the involved product with certainty; one incident (a 2018 death in the United States) involved magnets that matched the characteristics of magnets typically found in magnet sets, and the product was described consistently with magnet sets (
Whether a victim was hospitalized after ingesting magnets provides another indication of the severity of injuries or the need for significant treatment. As Table 10 shows, using CPSRMS data, the most common product types identified
Use patterns at the time magnets were ingested also show the need to address amusement and jewelry products. The most common identified use pattern at the time of a magnet ingestion was playing, meaning the victim was playing
Together, these factors—the prevalence of magnet ingestion incidents that involve products categorized as magnet sets, magnet toys, or jewelry; the higher rate of hospitalizations and deaths for these product categories; and the fact that the primary uses of magnets at the time of ingestion were playing and jewelry—demonstrate that magnet sets, magnet toys, and jewelry are the primary products involved in magnet ingestion incidents and pose an increased risk of serious health implications when ingested. For these reasons, CPSC considers a rule addressing these specific product categories necessary to adequately reduce the risk of injury and death associated with magnet ingestions. The definition of “subject magnets” in the proposed rule, which is limited to amusement and jewelry products, focuses the proposed rule on these most problematic products.
CPSC staff considers products that are intended for amusement and jewelry to be more likely to be accessible to and appealing to children and teens than other magnet products. Products that are intended for amusement and jewelry are likely to be perceived by children, teens, and caregivers as appropriate for use by children and teens; that perception is likely to make them accessible and appealing to children and teens. In contrast, magnets excluded from the scope of the proposed rule (
Incident data and consumer reviews support this assessment. As the incident data indicate, for magnet ingestions in which staff could identify the product type involved, most products were magnet sets and magnet toys, neither of which are products intended for use by children under 14 years old (see Table 1 and Table 9). Despite this, the vast majority of magnet ingestion incidents involved children under 14 years old (see Table 5 and Table 12), which demonstrates that children and teens access these amusement products intended for older users. Similarly, incident data show that, where the use pattern at the time of ingestion is known, victims were, by far, most often playing with the magnet (see Table 13), suggesting that victims may be attracted to and access products that appear to be playthings. The second most common identified use pattern was jewelry (see Table 13), suggesting that children and teens are also particularly likely to interact with magnets that are part of jewelry.
Of the magnet ingestion incidents for which the source of access could be identified, 19 percent (26 of 135) involved magnets that were purchased for the victim (see Table 14), despite most incidents involving children under 14 years old and products intended for users 14 years and older. This suggests that children, teens, and caregivers perceive products like magnet sets and magnet toys to be appealing to and appropriate for children and teens.
Another reason children and teens are particularly likely to be attracted by and access amusement products that include magnets is that these products often look the same as products intended as toys for children. Consumer reviews of products demonstrate this, with consumers commonly considering subject magnet products suitable playthings for children, and purchasing them for children, even when warnings state otherwise. Staff identified numerous incidents in which children ingested magnets from products that were marketed and labeled as not intended for children, and bore warnings regarding the magnet ingestion hazard. For example, staff identified 16 recent incidents in which children ingested magnets from a magnet set that included warnings and marketing indicating that the product was intended for adults. For older children, in particular, parents often do not expect that children would place magnets in their mouths.
The scope of the proposed rule specifically excludes products that are subject to 16 CFR part 1250. Currently, 16 CFR part 1250 incorporates by reference ASTM F963-17, which defines a “toy” as “any object designed, manufactured, or marketed as a plaything for children under 14 years of age.” As discussed above, ASTM F963-17 includes requirements consistent with the proposed rule, including the same performance requirements regarding size and strength.
Recall information suggests that the toy standard is largely complied with and has been effective at addressing the magnet ingestion hazard in children's toys. As discussed in section
In addition, as Table 10 suggests, when ASTM F963 magnet toys are ingested, they appear to result in severe injuries less commonly than other products. Magnet ingestions of ASTM F963 magnet toys resulted in hospitalization about as often as they resulted in other non-hospitalization dispositions; in contrast, magnet toys, magnet sets, and jewelry all resulted in hospitalization far more often than they resulted in other non-hospitalization dispositions. This suggests that when ASTM F963 magnet toys are ingested, they may be less likely to result in serious health outcomes requiring hospitalization. Of the 108 CPSRMS cases that had evidence of internal interaction through body tissue, only 6 cases involved products identified as ASTM F963 magnet toys. Of the 124 CPSRMS cases that indicated surgical procedures were necessary as a result of magnet ingestion, only 9 cases involved products identified as ASTM F963 magnet toys. Most, if not all, of the ingestions of ASTM F963 magnet toys that resulted in surgical intervention did not meet the requirements of ASTM F963.
For these reasons, CPSC does not consider it necessary to further address children's toys in this proposed rule. Nevertheless, there are two elements of the definition of “toys” that are noteworthy for this proposed rule.
First, “toys” are products that are intended as “playthings.” Thus, toys do not include products that are not playthings, even when they are intended for children under 14 years old. For example, children's jewelry, when not intended as a plaything, would not fall under the definition of a “toy” and, therefore, would not be subject to the toy standard.
Second, the definition of “toys” limits them to products intended for users under 14 years old. However, as magnet ingestion incident data show, products that are intended for users 14 years and older are commonly ingested by children and teens, indicating that the toy standard, on its own, cannot adequately address the magnet ingestion hazard. As discussed above, incidents categorized as involving magnet sets or magnet toys exclude products that staff confirmed were intended as playthings for children under 14 years old. These two categories were the most common categories of identified products involved in magnet ingestion incidents, despite the fact that most incidents involved children and teens under 14 years old. As Figure 2 shows, children as young as 11 months, and many children between 1 and 13 years old ingest products in the magnet toys and magnet sets categories. Staff identified many incidents in which the product ingested was clearly marketed and labeled as intended for adults, with warnings regarding the magnet ingestion hazard, but the product was, nevertheless, ingested by children under the intended user age. In many cases, caregivers even provided these products to children, despite the warnings. This demonstrates why it is necessary to adopt a standard for products intended for users 14 years and older, in addition to the toy standard, to adequately address the magnet ingestion hazard.
Based on the definition of “subject magnet products” and the scope of the proposed rule, certain products that contain loose or separable magnets are not subject to the proposed rule. Home and kitchen magnets are one such product, if they do not otherwise meet the definition of subject magnet products. Common examples of home and kitchen magnets are refrigerator magnets, magnetic decorations, hardware for kitchen cabinets, and shower curtain accessories. If such products are not loose or separable or are not designed, marketed, or intended to be used for entertainment, jewelry, mental stimulation, or stress relief, they would not fall under the scope of the proposed rule.
CPSC considers it reasonable to exclude home/kitchen products from the scope of the proposed rule for several reasons. For one, incident data indicate that home/kitchen magnets are far less commonly involved in magnet ingestion incidents than amusement and jewelry products. As Table 1 indicates, 16 percent (46 of 279) of NEISS magnet ingestion incidents for which the product category could be determined involved home/kitchen magnets; as Table 9 indicates, only 2 percent (6 of 241) of CPSRMS magnet ingestion incidents for which the product category could be determined involved home/kitchen magnets. Home/kitchen magnets also make up a very small portion of incidents that resulted in hospitalization. Table 10 shows that, only 3 percent (5 of 160) of the CSPRMS magnet ingestion incidents with identified product types that resulted in hospitalization, involved home/kitchen magnets. Of the 108 CPSRMS cases that had evidence of internal interaction through body tissue, only 1 case involved products identified by staff as home/kitchen products. Of the 124 CPSRMS cases that indicated surgical procedures were necessary as a result of magnet ingestion, only 2 cases involved products identified by staff as home/kitchen products.
In addition, as discussed above, CPSC considers it less likely that children and teens will interact with, play with, or experiment with home/kitchen magnets,
Other products that would fall outside the scope of the proposed rule include research and educational products, or those intended for commercial or industrial purposes, if they are not also intended for amusement or jewelry.
Staff also considers it less likely that children or teens would have access to such products. For example, magnets used for research or industrial applications are likely to be in settings that children do not frequent. Even if children could access such products, for the same reasons as home/kitchen magnets, staff considers it less likely that these products would appeal to children, appear to be playthings or jewelry to children or caregivers, or for children to interact with them in ways that would lead to ingestion.
In addition to the likely reduced hazard these out-of-scope products present to children and teens, CPSC also seeks to limit the scope of the proposed rule to the extent possible to reduce the impact on products, such as research, education, and industrial magnet products, that may have important uses and require magnets that are small and strong to serve their function. In contrast, amusement and jewelry products likely serve less critical functions and may still serve their purpose with slightly larger or slightly weaker magnets, or non-separable magnets.
CPSC considered using additional criteria, such as magnet composition or shape, as part of the scope of the proposed rule. However, CPSC did not limit the scope of the proposed rule to specific magnet compositions because staff has found that various magnet compositions have been involved in internal interaction incidents. For example, NIB is commonly used for smaller magnets from magnet sets and magnetic jewelry sets, and ferrite/hematite is commonly used for larger magnets, such as rock-shaped magnet toys. Staff testing of magnets in consumer products indicates that magnets with various compositions often have very high flux indexes, far in excess of the proposed limit of less than 50 kG
Under the proposed rule, each loose or separable magnet in a subject magnet product that fits entirely within the small parts cylinder described in 16 CFR 1501.4 must have a flux index of less than 50 kG
The small parts cylinder is described and illustrated in 16 CFR part 1501.4. Figure 5, below, shows the illustration, including the dimensions, of the cylinder, provided in the regulation.
If a magnet fits entirely within this cylinder, then its flux index must be less than 50 kG
To determine the flux index of a magnet, the proposed rule provides that at least one loose or separable magnet of each shape and size in the subject magnet product must have its flux index determined using the procedure in sections 8.25.1 through 8.25.3 of ASTM F963-17, which specify test equipment, measurements, the test method, and the calculation for determining flux index. The test requires a direct current field gauss meter with a resolution of 5 gauss (G) capable of determining the field with an accuracy of 1.5 percent or better and an axial probe with a specified active area diameter and a distance between the active area and probe tip. Using the meter, the probe tip is placed in contact with the pole surface of the magnet, the probe is kept perpendicular to the surface, and the probe is moved across the surface to find the maximum absolute flux density. The flux index, in kG
The first portion of the performance requirement in the proposed rule involves determining whether a magnet fits entirely within the small parts cylinder described in 16 CFR 1501.4. The purpose of this requirement is to determine whether a magnet is small enough to be swallowed. If so, then it is subject to strength requirements to reduce the risk of internal interaction injuries from strong magnets. However, if the magnet is too large to be swallowed, as determined by the small parts cylinder, then it is not subject to any strength requirements.
The small parts cylinder was developed to address choking, aspiration, and ingestion hazards for children, and was largely based on research and data regarding the size of objects children ingest. To address this hazard, since 1980, the Commission's regulations (at 16 CFR part 1501) have specified that certain toys and other articles intended for use by children must not contain choking, aspiration, or ingestion hazards for children. Whether these products present such hazards is determined by whether they fit within the small parts cylinder described in 16 CFR 1501.4.
Incident data further support the effectiveness of the small parts cylinder in 16 CFR part 1501.4 to address the magnet ingestion hazard. As discussed above, magnet ingestion incidents substantially declined during the years the magnet sets rule was announced and in effect, and substantially increased after the rule was vacated. The magnet sets rule included the same performance requirements regarding size and strength as this proposed rule, including the small parts cylinder. The marked decline in magnet ingestions during that rule suggests that the performance requirements in that rule were effective at reducing the risk of children ingesting magnets.
Similarly, there was a significant decline in recalls involving the magnet ingestion hazard after the toy standard became mandatory. The toy standard requires compliance with ASTM F963, which includes the same small parts cylinder as 16 CFR 1501.4. As such, this decline in recalled toys that present a magnet ingestion hazard after the toy standard became mandatory suggests that the requirements in that rule were effective at reducing the risk of children ingesting magnets. The low number of magnet ingestion incidents that identify ASTM F963 magnet toys as the involved product also indicates that the requirements in the standard have been effective at addressing the magnet ingestion hazard. Moreover, when magnet ingestions did occur with children's toys, they rarely resulted in
For these reasons, the proposed rule uses 16 CFR 1501.4 as the means of determining whether a child could ingest a particular magnet, thereby subjecting it to performance requirements regarding strength, to reduce the risk of injury.
When a magnet is small enough to fit entirely within the small parts cylinder, the proposed rule requires that the magnet have a flux index less than 50 kG
A magnet's composition, mass, and shape determine its magnetic field. This field is aligned with its north and south magnetic poles (see Figure 6). Surface flux density is a measurement of the magnetic field intensity at a given perpendicular distance above an area (dimension “x” in Figure 6). The maximum flux density is measured perpendicular to the pole surface of a magnet.
The ASTM F963 working group that developed the flux index methodology aimed to address injuries involving children ingesting small, powerful magnets. As such, it was designed to address the same hazard at issue in this proposed rule, and minimize the risk of internal injuries when magnets are ingested. As part of an ASTM standard, this methodology was developed by consensus, with input from various stakeholders, such as children's product manufacturers, consumer groups, and children's product engineers and experts. In addition, this methodology is used in multiple ASTM standards that address the magnet ingestion hazard, international standards (including EN 71-1: 2014 and ISO 8124-1: 2018), and the mandatory toy standard in 16 CFR part 1250. As part of these standards, the methodology is widely recognized and accepted, and has been used for many years.
CPSC staff considers this methodology effective for assessing the strength of subject magnet products. Incident data also support the effectiveness of the flux index methodology in ASTM F963 to address the magnet ingestion hazard. Magnet ingestion incidents appreciably declined during the years the magnet sets rule was announced and in effect, and appreciably increased after the rule was vacated. The magnet sets rule included the same size and strength limits as this proposed rule, and incorporated by reference the flux index methodology in ASTM F963. The decline in magnet ingestions during that rule suggests that the performance requirements in that rule were effective at reducing the risk of injury and death associated with magnet ingestions. Similarly, there was a significant decline in recalls involving the magnet ingestion hazard after the toy standard became mandatory. The toy standard requires compliance with ASTM F963 and, therefore, includes the same flux index methodology as this proposed rule. The decline in recalled toys that present a magnet ingestion hazard after the toy standard became mandatory suggests that the requirements in that rule were effective at reducing the risk of injury and death associated with magnet ingestions. The low number of magnet ingestion incidents that identify ASTM F963 magnet toys as the involved product also indicates that the requirements in the standard have been effective at reducing the magnet ingestion hazard. When magnet ingestions did occur with children's toys, they rarely resulted in the internal interaction hazard, and those that did result in internal interaction, did not comply with the toy standard.
For these reasons, the proposed rule uses the flux index methodology in
There are two issues that the Commission seeks input on regarding the flux index methodology. The first issue involves how many magnets to test. The proposed rule and ASTM F963-17 do not explicitly state how many magnets from a product to test, or whether to use statistical sampling. The proposed rule requires at least one loose or separable magnet of each shape and size to be tested, and specifies that each loose or separable magnet in a subject magnet product that fits entirely within the small parts cylinder must have a flux index less than 50 kG
However, subject magnet products may consist of hundreds or thousands of individual magnets. As such, it may be reasonable to require that only a “representative sample” or “at least one representative sample of each shape and size” be tested. CPSC staff's testing of magnets, described below, suggests that individual magnets within the same product may have different flux indexes, which may suggest that it is important to test each individual magnet in a product. CPSC seeks comments on how firms would test products to align with the proposed requirements, whether another requirement regarding the number of magnets to test is appropriate, and how firms would satisfy such alternative requirements.
The second issue for which the Commission seeks comments is the utility of the flux index methodology for certain magnets—in particular, small spherical magnets. Staff has found the flux index methodology straightforward and consistent when used for large disc magnets. However, staff encountered some challenges finding the location of the poles for magnets smaller than 3 mm in diameter because of difficulties handling these particularly small spherical magnets. This may result in inaccurate measurements of the highest flux index values if the value is not measured above the magnet's pole. Staff testing of 2.5 mm spherical magnets, described below, illustrates this potential issue.
To examine possible ways to address this, staff refined the test procedure in ASTM F963-17 to include additional detail to locate the magnet pole and secure the magnet on a base, rather than holding it. This test procedure maintained the flux index methodology in ASTM F963-17, and merely added information to it, which staff found improved the accuracy and consistency of flux density measurements and calculations. This refined procedure is provided in detail in the Appendix to Tab D of the NPR briefing package. To summarize, the refined test method consists of the following steps:
(1) Use a flat magnetic or ferromagnetic utensil to attract spherical magnets into alignment with pole orientation towards the utensil;
(2) Transfer the spherical magnets from the utensil to a flat surface covered in at least 2 mm depth of putty that is dense/thick enough to maintain the configuration of the spherical magnets in the proper pole orientation (established by magnetic attraction with the utensil); and
(3) With the spherical magnets aligned in the flat surface putty with pole orientation facing away from the test surface, use the gauss meter probe to determine the maximum flux value of each individual magnet.
The additional detail in this refined procedure is one option for potentially supplementing the flux index methodology in ASTM F963-17. However, there are other potential alternatives to the method in ASTM F963-17, such as considering attraction and repulsion forces. The Commission requests comments on the variability of flux index results, issues determining the flux index of smaller magnets, and potential refinements or alternatives to the proposed methodology for assessing the strength of magnets.
As part of an ASTM standard, the flux index limit was developed by consensus of various groups, including consumer groups, children's product engineers and experts, and manufacturers of children's products. Additional ASTM standards, as well as international standards that address magnet ingestions, including EN 71-1: 2014 and ISO 8124-1: 2018, also include a flux index limit of 50 kG
Incident data support the effectiveness of this flux index limit to address the magnet ingestion hazard. Magnet ingestion incidents substantially declined during the years the magnet sets rule was announced and in effect, and substantially increased after the rule was vacated. The magnet sets rule included a flux index limit of 50 kG
Staff's assessment of the flux index of subject magnet products, including those involved in magnet ingestion incidents, and those known to have involved internal interaction injuries, indicates that subject magnet products have a wide range of flux indexes. The most common subject magnet products staff identified are 3 to 6 mm and have flux indexes of 300 to 400 kG
Based on the widespread and longstanding use of the flux index limit of 50 kG
However, the Commission seeks comments on this flux index limit, whether a lower limit may be appropriate, and seeks testing and safety data supporting an appropriate flux index limit. CPSC testing of a small sample of subject magnet products suggests that magnets with a flux index lower than (
In March, April, and June 2021, CPSC staff tested magnets with diameters smaller than 5 mm, including 2.5 mm diameter spherical magnets from nine exemplar samples of one brand of magnet set, and two incident samples of the same brand.
In March 2021, staff conducted inter-rater reliability testing (
These results suggest several points of interest. For one, they indicate that there was some variation in flux index results across testers. In addition, these results suggest that magnets from the same set tend have more similar flux index measurements than magnets from different sets of the same product. The results also suggest that there is variation in the flux indexes of magnets from the same set, and the same products (across sets). The flux index measurements of 21 exemplar 2.5 mm diameter spherical magnets from 7 different magnet sets of the same brand ranged from 27.507 to 74.308 kG
This variation also may have implications for the number of magnets in a product that should be tested to assess flux index. Under the proposed rule, one loose or separable magnet with a flux index of 50 kG
In addition, because this testing used exemplars, and not the magnets that were actually ingested, staff cannot determine what flux index measurements resulted in internal interaction injuries. However, these results suggest that magnets ranging from approximately 30 to 70 kG
In March and April 2021, staff conducted similar testing. Three staff members tested spherical magnets from 4 separate sample/sets that were involved in internal interaction incidents. Set 1 included a single 2.5 mm diameter magnet that had not been ingested, but was from a set of ingested magnets that had interacted internally through a victim's body tissue. The remaining 3 sets had magnets that were ingested and removed from the intestines of the victim who swallowed them (
The results in Table 16 show similar trends as the testing above, with there being some variation across testers, less variation within sets than across sets, and a range of flux indexes across magnets, and sets. Set 1 in Table 16 was the same brand as the sets shown in Table 15, was a 2.5 mm spherical magnet, and had flux indexes that ranged from 41.766 to 45.173 kG
Sets 2 and 4 in Table 16 were 3 mm diameter spherical magnets from 2 sets from unknown manufacturers. The magnets staff tested for these sets were actually ingested and had interacted internally through a victim's body tissue. As such, the results for these sets are particularly useful for assessing the magnet strength that may attract internally through body tissue. These magnets had flux indexes that ranged from 63.795 to 96.426 kG
Set 3 in Table 16 included three 2.5 mm diameter spherical magnets from a magnet set of the same brand as those in Table 15. The tested magnets had been ingested and interacted internally through the victim's tissue. Thus, like sets 2 and 4, these results are particularly useful for assessing the magnet strength that may attract internally through body tissue. The flux indexes for these magnets ranged from 46.239 to 52.135 kG
In June 2021, CPSC staff tested magnets from 2 more exemplar magnet sets of the same brand shown in Table 15, each of which consisted of spherical rare-earth magnets that were 2.5 mm in diameter. Magnet sets of this brand and type were known to have been involved in at least 6 internal interaction incidents. Staff measured the flux index of 3 magnets from each set and calculated the flux index values. The results are in Table 17.
Again, these results indicate variation in the flux indexes of magnets within the same set, and that flux indexes are more similar within a set than across sets. For the 6 magnets tested, flux indexes ranged from 35.683 to 62.677 kG
The following provides a summary of the consolidated results of all of these tests. Staff assessed 2.5 mm and 3 mm diameter spherical magnets associated with internal interaction incidents. The exemplar 2.5 mm magnets had flux index values between 27.507 to 74.308 kG
However, these results also suggest that there is some variability in the flux index values, which may have implications for the proposed flux index test methodology. These results also indicate that magnets that may have flux indexes lower than 50 kG
The Commission is proposing to issue a rule under sections 7 and 9 of the CPSA. The CPSA requires that the Commission prepare a preliminary regulatory analysis and publish it with the text of the proposed rule. 15 U.S.C. 2058(c). The following discussion is extracted from staff's memorandum, “Preliminary Regulatory Analysis of a Draft Proposed Rule that Would Establish a Standard for Hazardous Magnet Products,” available in Tab E of the NPR briefing package.
The preliminary regulatory analysis must include a description of the potential benefits and costs of the proposed rule. The benefits of the rule are measured as the expected reduction in the societal costs of deaths and injuries that would result from adopting the proposed rule and any benefits that cannot be quantified. The costs of the rule consist of the added costs associated with modifying or discontinuing products that do not comply with the requirements of the rule, including any impacts on the utility of the products for consumers, as well as any costs that cannot be quantified.
As discussed above, based on NEISS data, which is a nationally representative probability sample of about 100 U.S. hospitals, there were an estimated 4,400 ED-treated magnet ingestions between 2010 and 2020 that involved subject magnet products, and an additional estimated 18,100 ED-treated magnet ingestions that involved unidentified magnet products, of which CPSC concludes a large portion involved subject magnet products.
In addition to injuries initially treated in hospital EDs, many product-related injuries are treated in other medical settings, such as, physicians' offices, clinics, and ambulatory surgery centers. Some injuries also result in direct hospital admissions, bypassing hospital EDs entirely. CPSC estimates the number of subject magnet product injuries treated outside of hospital EDs with CPSC's Injury Cost Model (ICM), which uses empirical relationships between the characteristics of injuries (diagnosis and body part) and victims (age and sex) initially treated in hospital EDs and the characteristics of those initially treated in other settings.
The ICM estimate of injuries treated outside of hospitals or hospital EDs (
The classification tree analysis technique (also called decision tree) is a statistical tool that divides and sorts data into smaller and smaller groups for estimating the ED share of injuries until no further gains in predictive power can be obtained. This technique allows for more precise estimates of injuries treated in doctor visits or injuries admitted directly to the hospital than other regression techniques. For example, where data permit, the age and sex of the victim can have an influence on the estimates of the number of injuries treated outside the ED. Combining the national estimates of NEISS with the non-ED estimates from the ICM using classification tree techniques provides total estimated medically-treated injuries.
Based on the estimate of 2,135 magnet injuries initially treated in hospital EDs annually during 2017 through 2020, the ICM projects that another 856 magnet injuries were treated annually outside of hospitals (
The ICM is fully integrated with NEISS and provides estimates of the societal costs of injuries reported through NEISS, as well as the societal costs of other medically treated injuries estimated by the ICM. The major aggregated societal cost components provided by the ICM include medical costs, work losses, and the intangible costs associated with lost quality of life or pain and suffering.
Medical costs include three categories of expenditures: (1) Medical and hospital costs associated with treating the injury victim during the initial recovery period and in the long term, including the costs associated with corrective surgery, the treatment of chronic injuries, and rehabilitation services; (2) ancillary costs, such as costs for prescriptions, medical equipment, and ambulance transport; and (3) costs of health insurance claims processing. CPSC derived the cost estimates for these expenditure categories from a number of national and state databases, including MEPS, HCUP-NIS, the Nationwide Emergency Department Sample (NEDS), the National Nursing Home Survey (NNHS), MarketScan® claims data, and a variety of other federal, state, and private databases.
Work loss estimates are intended to include: (1) The forgone earnings of the victim, including lost wage work and household work; (2) the forgone earnings of parents and visitors, including lost wage work and household work; (3) imputed long term work losses of the victim that would be associated with permanent impairment; and (4) employer productivity losses, such as the costs incurred when employers spend time juggling schedules or training replacement workers. Estimates are based on information from HCUP-NIS, NEDS, Detailed Claims Information (a workers' compensation database), the National Health Interview Survey, U.S. Bureau of Labor Statistics, and other sources. The intangible, or non-economic, costs of injury reflect the physical and emotional trauma of injury, as well as the mental anguish of victims and caregivers. Intangible costs are difficult to quantify because they do not represent products or resources traded in the marketplace. Nevertheless, they typically represent the largest component of injury cost and need to be accounted for in any benefit-cost analysis involving health outcomes. The ICM develops a monetary estimate of these intangible costs from jury awards for pain and suffering. While these awards can vary widely on a case-by-case basis, studies have shown them to be systematically related to a number of factors, including economic losses, the type and severity of injury, and the age of the victim.
Table 18 provides annual estimates of the injuries and societal costs associated with ingestions of magnets categorized as magnet sets, magnet toys, and jewelry.
The 2017 through 2020 NEISS estimates suggest an estimated annual average of about 437 ED-treated injuries, comprised of 278 injuries that were treated and released and 159 injuries that required hospitalization. Additionally, based on estimates from the ICM, 164 injuries were treated outside of hospitals annually and another 77 injuries resulted in direct hospital admission.
Based on ICM estimates, these injuries resulted in annual societal costs of about $47.6 million (in 2018 dollars) during 2017 through 2020. The average estimated societal cost per injury was about $13,000 for injuries treated in physician's offices, clinics, and other non-hospital settings; about $22,000 for injuries to victims who were treated and released from EDs; and about $166,000 for injuries that required admission to the hospital for treatment. Medical costs and work losses (including work losses of caregivers) accounted for about 44 percent of these injury cost estimates, and the less tangible costs of injury associated with pain and suffering accounted for about 56 percent of the estimated injury costs.
Table 18 reflects magnet ingestion incidents that involved products categorized as magnet sets, magnet toys, and jewelry—it does not include incidents categorized as involving unidentified product types. However, as discussed in section
The benefits of the proposed rule would be the reduction in the risk of injury and death from magnet ingestions and the resulting value of the societal costs of the injuries that the rule would prevent. In addition to the injuries reflected in the analysis above, staff is aware of 5 fatalities in the United States resulting from magnet ingestions. Thus, the rule would reduce the likelihood of future fatalities as well as injuries.
The annual expected benefits of the rule depend on the exposure to risk associated with subject magnet products, as well as the estimated societal costs described in Table 18, above. Although subject magnet products may retain their magnetism for many years, it is likely that some are discarded well before that time. Thus, the actual expected product life of subject magnet products is uncertain; this analysis presents a range of potential benefit estimates under an assumed product life of 1.5, 2, and 3 years. Table 19 presents benefit estimates under the alternative product life assumptions (line (b)).
In Table 19, line (a) shows the average annual aggregate societal costs from Table 18. Line (c) presents the average annual estimated number of subject magnet products in use from 2017 through 2020, based on producer-reported annual magnet set sales
Figure 7 shows changes in the estimated number of subject magnet products in use, from 2009 through 2020.
In Table 19, the annual estimated societal costs per subject magnet product in use (line d) are presented as the quotient of the annual societal costs (line a), per product in use, and the estimated average number of products in use (line c). Based on these estimates, and an assumed average product life ranging from 1.5 to 3 years, the present value of societal costs, per subject magnet product, ranges from about $160 to about $190 using a 3 percent discount rate (line e), or from about $154 to $178 using a 7 percent discount rate (line f).
The first order estimate of benefits would be equal to the present value of societal costs, presented in lines (e) and (f) and would range from about $154 (with a 1.5-year product life and a 7 percent discount rate) to $190 (with a 3-year product life and a 3 percent discount rate) per subject magnet product. The aggregate benefits would range from $80 million to $95 million using the 500,000 units assumption from Table 19 and 3 percent discount rate.
This section discusses the costs associated with the proposed rule, which include costs to consumers and to manufacturers/importers of subject magnet products. Both consumers and producers benefit from the production and sale of consumer products. The consuming public obtains the use value or utility associated with the consumption of products; producers obtain income and profits from the production and sale of products. Consequently, the costs of requiring that subject magnet products comply with the proposed rule would consist of: (1) The lost use value experienced by consumers who would no longer be able to purchase magnets that do not meet the standard (lost consumer surplus); and (2) the lost income and profits to firms that could not produce and sell non-complying products (lost producer surplus).
Both consumer and producer surplus depend on product sales, among other things. However, CPSC does not know the unit sales of subject magnet products. Therefore, this analysis considers possible costs associated with several estimates of sales, ranging from about 250,000 to 1 million subject magnet products per year. For purposes of discussion, the analysis below assumes annual sales of 500,000 per year.
The primary cost associated with the proposed rule is lost utility to consumers. Subject magnet products may be used for a variety of purposes, including amusement and jewelry. Previous comments CPSC has received regarding magnet sets, which likely comprise the majority of subject magnet products on the market, indicate that consumers use them as a manipulative or construction item for entertainment, such as puzzle working, sculpture building, mental stimulation, or stress relief. CPSC is also aware of claims that the magnets can have beneficial therapeutic value for children with attention-deficit/hyperactivity disorder. Incident data also suggests that magnet sets are used as jewelry. The individual magnets in subject magnet products might also have additional uses, apart from those for which they are intended (
CPSC cannot estimate the use value that consumers receive from subject magnet products, so the following discussion instead describes use value conceptually. In general, use value includes the amount of: (1) Consumer expenditures for the product, plus (2) consumer surplus. Assuming annual sales of about 500,000 subject magnet products annually, and assuming an average retail price of about $20 (based on price data for magnet sets), consumer expenditures would amount to about $10 million annually. These expenditures represent the minimum value that consumers would expect to get from these products. It is represented by the area of the rectangle OBDE in the standard supply and demand graph in Figure 8, where B equals $20, and E equals 500,000 units.
In Figure 8, consumer surplus is given by the area of the triangle BCD under the graph's demand function, and represents the difference between the market-clearing price and the maximum amount consumers would have been willing to pay for the product. This consumer surplus will vary for individual consumers, but it represents a benefit to consumers over and above what they paid.
In general, the use value of the subject magnet products obtained by consumers is represented by the area of the trapezoid OCDE in Figure 8. However, the prospective loss in use value associated with the proposed rule would amount to, at most, the area of the triangle representing the consumer surplus. This is because consumers would no longer be able to obtain utility from the products that do not comply with the proposed rule, but they would have the $10 million (represented by the rectangle OBDE) that they would have spent on non-complying subject magnet products in the absence of a rule. The net loss in consumer surplus associated with the proposed rule would be reduced by consumers' ability to purchase replacement products that comply with the proposed rule and provide the same utility, or by their ability to purchase other products that provide use-value.
CPSC does not have information regarding aggregate consumer surplus or, by extension, the amount of utility that would be lost as a result of the proposed rule. However, if, for example, consumers who purchased subject magnet products that do not comply with the proposed rule at an average price of $20 would have been willing to spend, on average, $35 to $45 per product (
However, the loss in consumer surplus described above represents the maximum loss of consumer utility from the proposed rule because consumers are likely to gain some amount of consumer surplus from products that are purchased as an alternative to subject magnet products that would no longer be available because of the rule. If, for example, there were close substitutes (
The lost benefits to firms that could result from the proposed rule are measured by a loss in producer surplus. Producer surplus is a profit measure that is somewhat analogous to consumer surplus. Whereas consumer surplus is a measure of benefits received by individuals who consume products, net of the cost of purchasing the products, producer surplus is a measure of the
In Figure 8, above, total revenue is given by the area OBDE, which is the product of sales and price. The total variable costs of production are given by the area under the supply function, OADE. Consequently, producer surplus is given by the triangle ABD, which is the area under the market clearing price and above the supply function. Note that this represents the maximum loss to producers; if there were product alternatives that were similar to subject magnet products that suppliers could produce and sell, the lost producer surplus could be less.
Following the example above, if sales of the subject magnet products average about 500,000 units annually, with an average retail price of about $20 per product, then total industry revenues have averaged about $10 million annually (
Like costs to consumers, lost producer surplus could be offset by products that comply with the proposed rule. That is, although firms could not offer subject magnet products that do not comply with the proposed rule, they could offer substitutions that serve the same or similar purpose but comply with the proposed rule.
As noted above, CPSC does not know the actual sales levels of non-complying subject magnet products, and does not have information to reliably estimate either consumer surplus or producer surplus. Table 20, below, provides rough estimates of the possible costs of the rule, for various hypothetical sales levels ranging from 250,000 to 1 million products annually. The cost estimates are based on a number of assumptions described above, and are made for illustrative purposes. Nevertheless, because the range of sales is wide, and is likely to include actual sales levels on an annual basis, it is reasonable to assume that the costs of the proposed rule could range from about $5 to $8.75 million (if sales amount to about 250,000 products annually), to about $20 to $35 million (if sales amount to about 1 million products annually). As noted above, these costs could be partially offset by products that comply with the proposed rule.
In addition to lost producer surplus, manufacturers/importers of subject magnet products that comply with the proposed rule would likely incur some additional costs associated with certifying that their products comply with the rule. Section XII. Testing, Certification, and Notice of Requirements, below, describes the requirements in section 14 of the CPSA regarding certifications. To summarize, consumer products that are subject to a mandatory standard must be certified as complying with the standard. Certification must be based on a test of each product or a reasonable testing program. For subject magnet products, the costs of this testing may be minimal, especially for manufacturers that currently have product testing done for products subject to the requirements in ASTM F963-17, which is mandated in 16 CFR part 1250. Importers may rely upon testing completed by other parties, such as their foreign suppliers, if those tests provide sufficient information for the manufacturers or importers to certify that the magnets in their products comply with the proposed rule. For subject magnet products that are children's products, such as children's jewelry, the certification must be based on testing by an accredited third-party conformity assessment body, at somewhat higher costs.
When the Commission issues an ANPR, it must invite interested parties to submit existing standards or provide a statement of intention to modify or develop a standard that would address the hazard at issue. 15 U.S.C. 2058(a). When CPSC receives such standards or statements in response to an ANPR, the preliminary regulatory analysis must provide reasons that the proposed rule does not include such standards.
Nevertheless, staff evaluated existing standards relevant to magnet ingestions and determined that these standards would not adequately reduce the risk of injury associated with magnet ingestions because they do not cover the products most often involved in incidents or do not include adequate performance requirements to reduce the risk of injury. A detailed discussion of these standards, and why staff considers
Finally, a preliminary regulatory analysis must describe alternatives to the proposed rule that CPSC considered, their potential costs and benefits, and a brief explanation of the reasons the alternatives were not chosen. CPSC considered several alternatives to the proposed rule. These alternatives, their potential costs and benefits, and the reasons the Commission did not select them, are described in detail in section VIII. Alternatives to the Proposed Rule, below, and Tab F of the NPR briefing package.
CPSC considered several alternatives to reduce the risk of injuries and death associated with ingestion of subject magnet products. However, as discussed below, CPSC does not consider any of these alternatives capable of adequately reducing the risk of injury and death.
One alternative to the proposed rule is to take no regulatory action and, instead, rely on the ASTM standards to address the magnet ingestion hazard. As discussed above, there are four ASTM standards that address the magnet ingestion hazard, covering children's toys, jewelry, and magnet sets. Relying on these standards would eliminate the costs associated with the proposed rule because it would not mandate compliance. ASTM F3458, in particular, has the potential to address the magnet ingestion hazard because it applies to magnet sets, which are involved in a large portion of magnet ingestion incidents where the product type could be identified.
However, there are considerable limitations and unknowns associated with this alternative. The shortcomings of the ASTM standards are discussed in detail in section V. Relevant Existing Standards. For one, CPSC does not consider ASTM F3458 capable of adequately reducing the magnet ingestion hazard because of its limited scope and lack of size and strength requirements for magnets. Although Subcommittee F15.77 on Magnets formed a task group to consider revising ASTM F3458-21 to include performance requirements for magnet sets intended for users 14 years and older, CPSC does not know whether the standard will be revised or what requirements may be added to it.
Moreover, ASTM F3458 applies only to magnets sets, which are not the only products implicated in magnet ingestion incidents. Additional magnet toys intended for users 14 years and older, as well as jewelry are also implicated. Although ASTM has standards regarding the magnet ingestion hazard in jewelry, CPSC considers those standards inadequate because they do not impose size and strength limits on all jewelry with loose or separable magnets. In addition, CPSC does not know the level of compliance with ASTM F3458, ASTM F2999, or ASTM F2923; if the rate of compliance is low, these would not be an effective way to address the hazard, even if the requirements in these standards were adequate. Finally, waiting for ASTM to revise its standards to adequately address the hazard would delay the safety benefits of the proposed rule. For these reasons, the Commission did not select this alternative.
Another alternative to the proposed rule is to adopt a mandatory standard with less stringent requirements than the proposed rule, such as a higher flux index limit, or different requirements for certain shapes and sizes of magnets. This may reduce the costs associated with the rule by allowing firms to market and consumers to use a wider variety of products than under the proposed rule. The reduction in costs would depend on the specific requirements adopted.
However, this option would likely reduce the safety benefits of the rule. If the alternative performance requirements reduced costs by allowing more products to remain on the market, it likely would also leave more hazardous products on the market, thereby decreasing the safety benefits. Therefore, the Commission did not select this alternative. The Commission seeks comments on what potential alternative performance requirements may adequately reduce the risk of injury associated with magnet ingestions, while reducing costs to firms and impacts on consumer utility.
Instead of performance requirements, the Commission could require safety messaging on products to address the magnet ingestion hazard, such as through requirements for labeling and instructional literature. This alternative would reduce the costs associated with the proposed rule because it would allow firms to continue to sell subject magnet products with loose or separable hazardous magnets and the costs of warnings and instructional information likely would be small.
However, CPSC does not consider this alternative effective for adequately reducing the risk of injury and death associated with magnet ingestions. For a detailed discussion of why labeling and instructional literature requirements are insufficient to adequately address the magnet ingestion hazard, see section
Warning information on labels and instructional literature, as well as public outreach efforts to inform consumers of the hazard, have been used to try to address the magnet ingestion hazard for many years. However, these efforts have been unsuccessful at reducing the magnet ingestion hazard, as evidenced by the increase in magnet ingestion incidents in recent years, and magnet ingestion incidents involving products with clear warnings.
For these reasons, the Commission did not select this alternative.
Another alternative is for the Commission to require special packaging for subject magnet products that contain hazardous magnets to limit children's access to the products. Such packaging could, for example, help consumers determine if all magnets have been returned to the packaging and include child-resistant features. Although this alternative would create some costs associated with packaging, those costs likely would be lower than the proposed rule because they would allow subject magnet products to remain unchanged. Staff estimates that the cost of safety packaging may amount to about $1 per magnet product, depending on the requirements and features of the packaging.
However, CPSC does not consider this alternative effective for adequately reducing the risk of injury and death associated with magnet ingestions. For a detailed discussion of why packaging requirements are insufficient to
For one, consumers are unlikely to repackage all magnets after each use. After assembling structures or jewelry, or using the magnets for other purposes, consumers would be unlikely to disassemble their creations to return them to the package. In addition, products often contain hundreds or thousands of magnets, making it time consuming and difficult to ensure all of the magnets are returned to the package. Moreover, small magnets become loose in the environment and are hard to locate to return to the package. In addition, consumers often do not perceive subject magnet products as hazardous, making it less likely that they would repackage all of the magnets. Even for products that are obviously hazardous and commonly use CR packaging, such as chemicals and pharmaceuticals, consumers use the packaging inconsistently. Consumers may also consider CR packaging a nuisance, making them unlikely to store magnets in the packaging after every use.
Even if consumers return all magnets to a package after each use, safety features to prevent easy access to the contents of the package would only address a minority of the vulnerable population. Safety packaging is generally intended to restrict children under 5 years old from accessing package contents. Older children and teens are likely to have the cognitive and motor skills necessary to access products in special packaging. This is problematic because incident data show that older children and teens make up the majority of magnet ingestion victims. In addition, many incidents involve children and teens acquiring magnets without the product packaging, such as from friends, at school, or loose in the environment. For these reasons, the Commission did not select this alternative.
Instead of the size and strength requirements in the proposed rule, the Commission could require manufacturers to coat loose or separable hazardous magnets in subject magnet products with aversive agents, such foul odors or bitterants. Aversive agents may dissuade some children and teens from placing hazardous magnets in their mouths. This alternative would reduce the costs associated with the proposed rule because it would allow firms to continue to sell subject magnet products with loose or separable hazardous magnets, would allow consumers to continue to use them, and the costs of such coatings likely would be small.
However, real-world investigations have not demonstrated that bitterants are effective at preventing ingestions.
Similarly, once a magnet is in a person's mouth, they may not be able to prevent ingestion even if deterred by a bitterant. The power of the magnetic forces can cause magnets to move erratically as pieces repel or attract, and movement of magnets toward the back of the throat can trigger the reflex to swallow the magnets before the person can remove them. Bitterants would be particularly ineffective for accidental ingestions, where victims did not intentionally place magnets in their mouths; incident data indicate that some magnet ingestions involve unintentional ingestions, particularly for older victims. Moreover, incidents involving ingestion of other hazardous substances demonstrates the ineffectiveness of aversive agents to prevent ingestions. Children frequently ingest unpalatable substances, such as gasoline, cleaners, and ammonia, indicating that unpleasant taste or odor, alone, is not sufficient to deter children from ingesting items or substances. In addition, some portion of the population, possibly as high as 30 percent, may be insensitive to certain bitterants.
For these reasons, the Commission did not select this alternative.
Another alternative is to provide a longer effective date for a final rule. In this proposed rule, the Commission proposes to make a final rule effective 30 days after the final rule is published. A longer effective date would reduce the impact of the rule on manufacturers and importers by extending the time firms have to develop products that comply with the rule or modify products to comply with the rule. However, delaying the effective date would delay the safety benefits of the rule as well. As such, the Commission did not select this alternative. However, the Commission requests comments about the proposed effective date.
This proposed rule does not contain a collection of information that is subject to public comment and review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
When an agency is required to publish a proposed rule, section 603 of the Regulatory Flexibility Act (5 U.S.C. 601-612) requires that the agency prepare an initial regulatory flexibility analysis (IRFA) that describes the impact that the rule would have on small businesses and other entities. An IRFA is not required if the head of an agency certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605. The IRFA must contain:
(1) A description of why action by the agency is being considered;
(2) a succinct statement of the objectives of, and legal basis for, the proposed rule;
(3) a description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply;
(4) a description of the projected reporting, recordkeeping and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and
(5) identification, to the extent practicable, of relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.
An IRFA must also describe any significant alternatives that would accomplish the objectives of the applicable statutes and minimize any significant economic impact on small
The IRFA for this proposed rule is available in Tab F of the NPR briefing package; this section provides an overview of the impact of the proposed rule on small businesses.
The intent of this rulemaking is to reduce deaths and injuries resulting from magnet ingestions. As incident data show, magnet ingestion incidents have increased in recent years, and commonly involve products categorized as amusement or jewelry products. Most incidents involve children and teens, particularly under 14 years old. If ingested, some magnets are powerful enough to interact internally with one another through body tissue, and resist natural bodily forces to separate the magnets. This interaction has led to serious injuries and several deaths in the United States. The internal interaction hazard is a hidden hazard, which children and caregivers are unlikely to anticipate, appreciate, and avoid, as demonstrated by incident data. Incident data and the health outcomes of magnet ingestions demonstrate the need for agency action.
The objective of the proposed rule is to reduce the risk of injury and death associated with ingestion of hazardous magnets, as discussed above. The proposed rule would be issued under the authority of sections 7 and 9 of the CPSA.
The proposed rule would apply to small entities that manufacture, import, or sell subject magnet products, which are products with one or more magnets, which are loose or separable, and designed, marketed, or intended to be used by consumers for entertainment, jewelry (including children's jewelry), mental stimulation, stress relief, or a combination of these purposes. Examples of subject magnet products include magnet sets, other types of magnet toys intended for users 14 years and older, and jewelry with separable magnets that can be arranged by the consumer.
Because CPSC's previous rulemaking work regarding magnet ingestions has focused on magnet sets, CPSC staff has more detailed information about magnet sets than other subject magnet products. For this reason, this analysis provides detailed information about magnet sets; however, staff also provides information about additional subject magnet products, to the extent information about these products is available.
All of the importers of magnet sets are small businesses under U.S. Small Business Administration (SBA) size standards, and CPSC expects that this is also true for manufacturers and importers of other subject magnet products. Currently, nearly all marketers (firms or individuals) of magnet sets sell through internet sites, rather than through physical retail stores such as bookstores, gift shops and other outlets (which commonly sold magnet sets from 2009 through mid-2012). Some of these internet sites are operated by the importers, but the majority of sellers (in terms of distinct firms or individuals, if not unit sales) appear to sell through their stores, operated on the sites of other internet platforms. These online retail outlets may also be used commonly by manufacturers and sellers of other subject magnet products.
As discussed above, in late 2018, IEc examined the market for magnet sets. In its review of internet platforms, IEc found a total of 69 sellers. IEc also identified 10 manufacturers and 2 retailers, which also are small businesses.
In 2020, CPSC staff reviewed the status of previously identified sellers of magnet sets on two major internet platforms and found further evidence of high turnover rates: Most of the sellers identified in late 2018 no longer sold magnet sets or had abandoned their stores. Only 9 of 69 sellers were still selling magnet sets. The remaining sellers no longer offered magnet sets or no longer operated on the platforms. In addition, staff identified 29 sellers that IEc had not identified as active in the market in late 2018.
Based on this information, CPSC staff expects the dominant business model for importers of magnet sets will be direct sales to consumers using their own internet websites or other internet shopping sites. However, the proposed rule could also affect some third-party retailers of the products, whether selling them online or in physical stores. Such retailers sell a wide variety of consumer products; retailers classified as small businesses that sell the products would not be likely to derive significant proportions of total revenues from sales of affected magnet sets, and the impacts on individual firms should be minimal.
The proposed rule would establish a mandatory standard that all subject magnet products would have to meet to be sold in the United States. As stated above, the proposed rule would require consumer products that are designed, marketed, or intended to be used for entertainment, jewelry, mental stimulation, stress relief, or a combination of these purposes, and that contain one or more loose or separable magnets to meet performance requirements. The proposed performance requirements specify that each loose or separable magnet in a subject magnet product that is small enough to fit entirely in the small parts cylinder must have a flux index less than 50 kG
In addition, certification requirements, which are discussed in section XII. Testing, Certification, and Notification of Requirements, below, would apply to subject magnet products. To summarize, section 14 of the CPSA requires manufacturers, importers, or private labelers of a consumer product that is subject to a consumer product safety rule to certify, based on a test of each product or a reasonable testing program, that the product complies with all rules, bans or standards applicable to the product. The proposed rule specifies the test procedure to use to determine whether a subject magnet product complies with the requirements. For products that manufacturers certify, manufacturers would issue a general certificate of conformity (GCC). In the case of subject magnet products that could be considered children's products, the certification must be based on testing by
The requirements for the GCC are stated in section 14 of the CPSA. Among other requirements, each certificate must identify the manufacturer or private labeler issuing the certificate and any third-party conformity assessment body on whose testing the certificate relies; the date and place of manufacture; the date and place where the product was tested; each party's name, full mailing address, telephone number; and contact information for the individual responsible for maintaining records of test results. The certificates must be furnished to each distributor or retailer of the product and to CPSC, if requested.
Small manufacturers and importers of subject magnet products would likely incur some costs to certify that their products meet the requirements of the proposed rule, as required by section 14 of the CPSA. The certification must be based on a test of each product or a reasonable testing program. The costs of the testing might be minimal, especially for small manufacturers that currently have product testing done for products subject to the requirements in ASTM F963-17, which is mandated by 16 CFR part 1250. Importers may also rely on testing completed by other parties, such as their foreign suppliers, if those tests provide sufficient information for the manufacturers or importers to certify that the magnets in their products comply with the proposed rule. As noted above, for subject magnet products that could be considered children's products, such as children's jewelry, the certification must be based on testing by an accredited third-party conformity assessment body, at somewhat higher costs. The Commission requests comments regarding the costs or other impacts of the certification requirements under section 14 of the CPSA.
As discussed in the preliminary regulatory analysis, the primary impact of the proposed rule on small businesses would be the lost income and profits to firms that could not produce, import, and sell non-complying products in the future. The lost benefits to firms resulting from a proposed rule are measured by a loss in producer surplus, which is a measure of the total revenue of firms selling the magnets, less the total variable costs of production. As predominantly imported products, the variable costs for small businesses handling subject magnet products are mainly the import costs. The producer surplus for magnet sets could average about $5 to $10 per unit, based on an average price of $20. A similar relationship could apply to other subject magnet products affected by the proposed rule.
A few small firms whose businesses focus on sales of subject magnet products that would not comply with the proposed rule, including some of the firms selling products on their own websites, would face relatively greater losses in producer surplus. These and other small businesses could respond to the rule by marketing magnets that comply with or are not subject to the proposed rule. Such measures could offset losses in producer surplus.
CPSC did not identify any federal rules that duplicate, overlap, or conflict with the proposed rule.
As discussed in section VIII. Alternatives to the Proposed Rule, above, CPSC examined several alternatives to the proposed rule, which could reduce the burden on firms, including small entities. For the reasons described in that section, the Commission concluded that those alternatives would not adequately reduce the risk of injury and death associated with magnet ingestions, and is not proposing those alternatives. See Tab F of the NPR briefing package for further discussion of alternatives to the proposed rule. The Commission seeks comments on any alternatives that would reduce the impact on small entities, while adequately reducing the risk of injury and death associated magnet ingestions.
The proposed rule incorporates by reference ASTM F963-17. The Office of the Federal Register (OFR) has regulations regarding incorporation by reference. 1 CFR part 51. Under these regulations, in the preamble of an NPR, an agency must summarize the incorporated material, and discuss the ways in which the material is reasonably available to interested parties or how the agency worked to make the materials reasonably available. 1 CFR 51.5(a). In accordance with the OFR requirements, this preamble summarizes the provisions of ASTM F963-17 that the Commission proposes to incorporate by reference.
The standard is reasonably available to interested parties and interested parties can purchase a copy of ASTM F963-17 from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA; telephone: (610) 832-9585;
Section 14(a) of the CPSA includes requirements for certifying that children's products and non-children's products comply with applicable mandatory standards. 15 U.S.C. 2063(a). Section 14(a)(1) addresses required certifications for non-children's products, and sections 14(a)(2) and (a)(3) address certification requirements specific to children's products.
A “children's product” is a consumer product that is “designed or intended primarily for children 12 years of age or younger.”
• Manufacturer statements about the intended use of the product, including a label on the product if such statement is reasonable;
• whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger;
• whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger; and
• the Age Determination Guidelines issued by CPSC staff in September 2002, and any successor to such guidelines.
As discussed above, some subject magnet products (
The Commission published a final rule, codified at 16 CFR part 1112, entitled
Testing laboratories that apply for CPSC acceptance to test subject magnet products that are children's products for compliance with the new rule would have to meet the requirements in part 1112. When a laboratory meets the requirements of a CPSC-accepted third party conformity assessment body, the laboratory can apply to CPSC to include 16 CFR part 1262,
The Commission's regulations address whether CPSC is required to prepare an environmental assessment (EA) or an environmental impact statement (EIS). 16 CFR 1021.5. Those regulations list CPSC actions that “normally have little or no potential for affecting the human environment,” and, therefore, fall within a “categorical exclusion” under the National Environmental Policy Act (42 U.S.C. 4231-4370h) and the regulations implementing it (40 CFR parts 1500-1508) and do not require an EA or EIS. 16 CFR 1021.5(c). Among those actions are rules that provide performance standards for products.
Executive Order (E.O.) 12988,
The regulation for subject magnet products is proposed under authority of the CPSA. 15 U.S.C. 2051-2089. Section 26 of the CPSA provides that “whenever a consumer product safety standard under this Act is in effect and applies to a risk of injury associated with a consumer product, no State or political subdivision of a State shall have any authority either to establish or to continue in effect any provision of a safety standard or regulation which prescribes any requirements as to the performance, composition, contents, design, finish, construction, packaging or labeling of such product which are designed to deal with the same risk of injury associated with such consumer product, unless such requirements are identical to the requirements of the Federal Standard.” 15 U.S.C. 2075(a). The federal government, or a state or local government, may establish or continue in effect a non-identical requirement for its own use that is designed to protect against the same risk of injury as the CPSC standard if the federal, state, or local requirement provides a higher degree of protection than the CPSA requirement.
Thus, the requirements proposed in today's
The CPSA requires that consumer product safety rules take effect at least 30 days after the date the rule is promulgated, but not later than 180 days after the date the rule is promulgated unless the Commission finds, for good cause shown, that an earlier or later effective date is in the public interest and, in the case of a later effective date, publishes the reasons for that finding. 15 U.S.C. 2058(g)(1). The Commission proposes that this rule, and the amendment to part 1112, become effective 30 days after publication of the final rule in the
As discussed in section II. Statutory Authority, above, the CPSA requires the Commission to make certain findings when issuing a consumer product safety standard. 15 U.S.C. 2058(f)(1), (f)(3). This section discusses preliminary support for those findings.
To issue a final rule, the CPSA requires the Commission to make findings regarding the degree and nature of the risk of injury the rule is designed to eliminate or reduce. NEISS incident data indicate that there were an estimated 4,400 magnet ingestions treated in U.S. hospital EDs between January 1, 2010 and December 31, 2020 that involved products categorized as being for amusement or jewelry, which are the products subject to this rule. An additional estimated 18,100 ED-treated magnet ingestions during this period involved unidentified magnet products. CPSC concludes that a large portion of these unidentified magnet product incidents likely involved subject magnet products, for the reasons stated below.
In addition to magnet ingestion injuries treated in U.S. hospital EDs, the ICM projects that there were an estimated 3,255 magnet ingestion injuries per year treated in medical settings other than EDs from 2017 through 2020. Incident reports available through CPSRMS indicate that there were at least 284 magnet ingestions between January 1, 2010 and December 31, 2020, 75 percent of which involved products categorized as being for amusement or jewelry, which are the products subject to this rule, and an additional 15 percent involved unidentified magnet products, which CPSC concludes are likely to have involved subject magnet products for the reasons stated below.
The potential injuries when a person ingests one or more magnets are serious. Health threats posed by magnet ingestion include pressure necrosis, volvulus, bowel obstruction, bleeding, fistulae, ischemia, inflammation, perforation, peritonitis, sepsis, ileus, ulceration, aspiration, and death, among others. These conditions can result from magnets attracting to each other through internal body tissue, or a single magnet attracting to a ferromagnetic object. CPSC is aware of several fatal magnet ingestion incidents resulting from internal interaction of the magnets.
As indicated above, CPSC concludes that many of the magnet ingestion incidents for which information was insufficient to identify the specific product type involved subject magnet products. This conclusion is supported by incident data, trends in magnet ingestion rates and recalls surrounding mandatory standards, and behavioral and developmental considerations. Incident data indicate that, of the magnet ingestion incidents for which CPSC could identify a product type, the primary products involved were magnet sets, magnet toys, and jewelry; this is likely to apply to incidents that lacked product identification information as well.
Trends in magnet ingestion rates surrounding a previous Commission rule on magnet sets indicate that magnet ingestions significantly declined during the time the rule was in effect, and significantly increased after the rule was vacated. This indicates that a large portion of magnet ingestions involved magnet sets, which are subject magnet products. Similarly, incident data and recalls surrounding the Commission's mandatory standard for magnets in children's toys, in 16 CFR part 1250, indicate that, while amusement products are involved in most magnet ingestion incidents with identifiable product types, those amusement products are not children's toys. Relatively few magnet ingestion incidents identify children's toys as the product involved, suggesting that these make up few of the unidentified product type incidents as well. And the number of recalls of children's products for magnet-related hazards has appreciably declined since 16 CFR part 1250 took effect, suggesting that these products do not make up a large portion of magnet ingestion incidents.
Finally, behavioral and developmental factors support the conclusion that many magnet ingestions with unidentified product types involve subject magnet products. These include the attractiveness of magnetic products and their features to children and teens, consumers' perception that amusement and jewelry products are appropriate and safe for children, and consumers' underappreciation of the magnet ingestion hazard.
To issue a final rule, the CPSA requires the Commission to make findings regarding the approximate number of consumer products subject to the rule. Staff estimates that there are approximately 500,000 subject magnet products sold annually in the United States. However, to account for a range of sales estimates, staff also provided information for sales ranging from 250,000 to 1 million units annually.
To issue a final rule, the CPSA requires the Commission to make findings regarding the public's need for the products subject to the rule and the probable effect of the rule on the cost, availability, and utility of such products. Consumers use subject magnet products for entertainment, mental stimulation, stress relief, and jewelry. The proposed rule requires subject magnet products to meet performance requirements regarding size or strength, but does not restrict the design of products. As such, subject magnet products that meet the standard would continue to serve the purpose of amusement or jewelry for consumers. Magnets that comply with the proposed rule, such as non-separable magnets, larger magnets, weaker magnets, or non-permanent magnets, would likely still be useful for amusement or jewelry. However, it is possible that there may be some negative effect on the utility of subject magnet products if compliant products function differently or do not include certain desired characteristics.
Retail prices of subject magnet products generally average under $20. CPSC has identified subject magnet products that comply with the proposed rule, indicating that the costs of compliant and non-compliant products are comparable.
If the costs associated with redesigning or modifying subject magnet products to comply with the proposed rule result in manufacturers discontinuing products, there may be some loss in availability to consumers. However, this would be mitigated to the extent that compliant products meet the same consumer needs.
To issue a final rule, the CPSA requires the Commission to make findings regarding ways to achieve the objective of the rule while minimizing adverse effects on competition, manufacturing, and commercial practices. CPSC considered several alternatives to achieve the objective of reducing unreasonable risks of injury and death associated with magnet ingestions.
One alternative is to take no regulatory action and instead rely on existing ASTM standards to address the magnet ingestion hazard. This would eliminate costs associated with the rule by avoiding a mandatory standard; however, this alternative is unlikely to adequately reduce the risk of injury and death associated with magnet ingestions. For one, none of the existing standards address all of the products most commonly identified in magnet ingestion incidents, and several of the standards provide exceptions to
Another alternative is a mandatory standard with less stringent requirements than the proposed rule, such as a higher flux index limit, or different requirements for certain shapes and sizes of magnets. This could reduce the costs associated with a rule by allowing firms to market a wider variety of products than under the proposed rule. However, for this alternative to reduce costs, it would allow more products to remain on the market, thereby decreasing the safety benefits.
Safety messaging requirements are another alternative to the proposed rule. This would reduce the costs associated with the rule because it would not require modifying or discontinuing subject magnet products, and the costs of warnings and instructional information likely would be small. However, this alternative is not likely to adequately reduce the risk of injury and death associated with magnet ingestions because the effectiveness of safety messaging depends on consumers seeing the messaging and being convinced to avoid the hazard. Incident data indicate that children commonly access ingested magnets from sources that are unlikely to include the product packaging bearing instructions or warnings. Moreover, consumers are unlikely to consistently heed warnings because of the perception that subject magnet products are appropriate for children, and underappreciation of the magnet ingestion hazard. Safety messaging is generally considered the least effective way to address product hazards, and has been ineffective at addressing the magnet ingestion hazard, to date.
Another alternative is to require special packaging to limit children's access to subject magnet products. Such packaging could help consumers determine if all magnets have been returned to the container and include child-resistant features. Although this alternative would create some packaging costs, those likely would be lower than the costs associated with the proposed rule because it would allow subject magnet products to remain unchanged. However, this alternative is not likely to adequately reduce the risk of injury and death associated with magnet ingestions. For packaging requirements to be effective, users would have to repackage all magnets after each use, which is unlikely given the size and number of magnets in a product, the potential to lose magnets, and consumers' demonstrated underappreciation of the hazard. In addition, packaging is unlikely to be effective because it generally only restricts young children (under 5 years old) from accessing package contents, and would not prevent older children or teens from accessing the package contents, although the majority of magnet ingestion incidents involved children 5 years and older.
Another alternative is to require subject magnet products to be coated with aversive agents. This alternative would reduce the costs associated with the rule because it would allow firms to continue to sell subject magnet products and the costs of such coatings likely would be small. However, such requirements are not likely to adequately reduce the risk of injury and death associated with magnet ingestions because they do not address ingestions that occur when the first magnet is placed in the victim's mouth, before the aversive agent is detected, accidental ingestions, or children who are developmentally inclined to place objects in their mouths.
Another alternative is to provide a longer effective date for the final rule. This may reduce the costs associated with the rule by spreading them over a longer period, but it would also delay the safety benefits of the rule.
To issue a final rule, the CPSA requires the Commission to find that the rule, including the effective date, is reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with the product. Factors the Commission considered with respect to this preliminary finding include the likelihood and severity of the risk, and the potential costs and benefits associated with the proposed rule.
As described above, there were an estimated 23,700 magnet ingestions treated in U.S. hospital EDs from January 1, 2010 to December 31, 2020. Although this includes ingestions of all magnet types, and is not limited to subject magnet products, it provides an indication of the frequency with which children and teens ingest magnets, and the need to address the magnet ingestion hazard. Of these estimated 23,700 ED-treated magnet ingestions, an estimated 4,400 involved products categorized as being used for amusement or jewelry, which are the products subject to this rule, and an additional estimated 18,100 involved unidentified magnet product types. As discussed with respect to the finding regarding the degree and nature of the risk of injury, a large portion of the incidents involving unidentified magnet products likely involve subject magnet products. In addition, the ICM projects that there were an additional estimated 3,255 magnet ingestion injuries per year treated in medical settings other than EDs from 2017 through 2020. Trend analysis indicates that magnet ingestions have significantly increased in recent years.
The potential injuries when a person ingests one or more magnets are serious. Health threats posed by magnet ingestion include pressure necrosis, volvulus, bowel obstruction, bleeding, fistulae, ischemia, inflammation, perforation, peritonitis, sepsis, ileus, ulceration, aspiration, and death, among others. These conditions can result from magnets attracting to each other through internal body tissue, or a single magnet attracting to a ferromagnetic object. One indication of the potential severity of magnet ingestions is hospitalization rates. Considering NEISS data, approximately 18 percent of estimated ED-treated magnet ingestions result in hospitalization. Of the 284 CPSRMS magnet ingestion cases, approximately twice as many resulted in hospitalization as other non-hospitalization treatment (187 hospitalizations, 94 other treatments). For subject magnet products, in particular, hospitalization was two to three times as common as other treatments. Specifically, for magnet set ingestions, 88 resulted in hospitalization and 46 resulted in other treatment; for magnet toys, 36 resulted in hospitalization and 13 resulted in other treatment; and for jewelry, 21 resulted in hospitalization, and 10 resulted in other treatment.
Another clear indication of the severity of health risks are fatal incidents. Staff identified five fatal magnet ingestion incidents that occurred in the United States between November 24, 2005 and January 5, 2021.
CPSC staff estimates that the rule could result in aggregate benefits of about $80 million to $95 million annually; this estimate excludes magnet ingestion incidents involving unidentified magnet products, which are likely to commonly involve subject magnet products, making the benefits of the rule substantially greater. CPSC staff estimates that the costs to consumers and manufacturers associated with the rule could range from $10 million to $17.5 million annually, assuming annual sales of 500,000 units.
For these reasons, the Commission concludes preliminarily that ingestion of subject magnet products poses an unreasonable risk of injury and finds that the proposed rule is reasonably necessary to reduce that unreasonable risk of injury.
To issue a final rule, the CPSA requires the Commission to find that issuing the rule is in the public interest. This proposed rule is intended to address an unreasonable risk of injury and death posed by magnet ingestions. The Commission believes that compliance with the requirements of the proposed rule will significantly reduce magnet ingestion deaths and injuries in the future; thus, the rule is in the public interest.
To issue a final rule, the CPSA requires the Commission to find that, if a voluntary standard addressing the risk of injury has been adopted and implemented, that either compliance with the voluntary standard is not likely to result in the elimination or adequate reduction of the risk or injury, or there is unlikely to be substantial compliance with the voluntary standard.
The Commission is aware of six voluntary and international standards that address the magnet ingestion hazard: ASTM F963-17,
None of these standards apply to all of the products most commonly identified in magnet ingestion incidents—magnet sets intended for users 14 years and older, magnet toys intended for users 14 years and older, and jewelry. Moreover, even for the products the standards do address, several standards provide exceptions for certain amusement and jewelry products, imposing only warning requirements for those products.
In addition, several of the standards do not impose performance requirements on magnets themselves, such as size and strength requirements, instead recommending or requiring safety messaging or packaging. CPSC does not consider safety messaging or packaging requirements sufficient, without additional performance requirements, to adequately reduce the risk of injury and death associated with magnet ingestions. Incident data indicate that children commonly access ingested magnets from sources that do not include packaging or safety messaging; children and caregivers have commonly disregarded safety messaging to date; safety packaging only limits young children from accessing its contents, which does not address the majority of magnet ingestions, which involve older children and teens; and safety packaging requires users to repackage all magnets after every use to be effective, which is unlikely given the large number and small size of magnets often in subject magnet products.
On a per unit basis (as shown in Table 19), CPSC estimates the expected benefits per unit to range from $160 (assuming a 1.5-year product life and a 3 percent discount rate) to $190 (assuming a 3-year product life and a 3 percent discount rate). The estimated expected cost to manufacturers per unit is between about $5 and $10, and there is an unquantifiable cost to consumers associated with lost utility and availability.
CPSC estimates the aggregate benefits of the rule to be $80 million to $95 million annually and estimates the cost of the rule to be between $10 million to $17.5 million annually, assuming sales of 500,000 units annually (estimated costs range from $5 million to $35 million annually, depending on annual sales between 250,000 and 1 million units). The Commission believes, preliminarily, that the benefits expected from the proposed rule bear a reasonable relationship to its costs.
CPSC considered several less-burdensome alternatives to the proposed rule. One alternative is to take no regulatory action and, instead, rely on existing standards to address the magnet ingestion hazard. This would reduce the burden associated with the rule by avoiding a mandatory standard; however, this alternative is unlikely to adequately address the magnet ingestion hazard because none of the existing standards apply performance requirements to all of the products most commonly involved in magnet ingestions incidents.
Another alternative is a mandatory standard with less stringent requirements than the proposed rule, such as a higher flux index limit, or different requirements for certain shapes and sizes of magnets. This could reduce the burden associated with a rule by allowing firms to market a wider variety of products than under the proposed rule. However, this alternative would reduce the safety benefits because allowing certain hazardous magnets in subject magnet products to remain on the market does not address the hazard such products pose.
Safety messaging is another alternative to the proposed rule. This alternative would reduce the burdens associated with the rule because it would not require modifying or discontinuing subject magnet products, and the costs of such warnings and instructional information likely would be small. However, this alternative is not likely to adequately reduce the magnet ingestion hazard. Safety messaging is generally the least effective way to reduce hazards associated with consumer products; incident data shows children commonly access ingested magnets from sources that do not include product packaging, where warnings are provided; incident data, behavioral and developmental factors, and other information indicate that children and caregivers commonly disregard safety messaging regarding the magnet ingestion hazard; and this approach has not been effective at adequately reducing the hazard, to date.
Another alternative is to require special packaging to limit children's access to subject magnet products. Such packaging could help consumers determine if all magnets have been
Another alternative is to require subject magnet products to be coated with aversive agents. This alternative would reduce the burden associated with the rule because it would allow firms to continue to sell subject magnet products and the costs of such coatings likely would be small. However, such requirements are not likely to adequately address the hazard because they do not address ingestions that occur when the first magnet is placed in the victim's mouth, before the aversive agent is detected, accidental ingestions, or children who are developmentally inclined to place objects in their mouths.
Another alternative is to provide a longer effective date for the final rule. This may reduce the burdens associated with the rule by spreading them over a longer period, but it would also delay the safety benefits of the rule.
The Commission requests comments on all aspects of the proposed rule. Comments should be submitted in accordance with the instructions in the
• The scope of products covered by the proposed rule, and whether additional products should be included or excluded from the scope;
• Specifically, whether home/kitchen magnets or education products should be addressed in the rule;
• Data supporting any recommendations to include or exclude products from the scope of the rule; and
• Information and data about magnets involved in ingestion incidents that are categorized as unidentified product types in staff's analysis.
• Application of the ASTM F963 test method for measuring flux density, particularly to test small diameter spherical magnets in the 2 to 3 mm diameter range;
• Variances in flux density measurements of small spherical magnets, including correct identification of pole surfaces, accurate measurement of maximum absolute flux density, and accurate calculation of maximum cross section of the magnetic poles;
• Potential alternative methods of assessing the strength of magnets or their ability to cause internal interaction injuries;
• How many magnets should be tested, including whether all loose or separable magnets in subject magnet products should be tested, or only a representative sample or at least one representative sample of each shape and size should be tested, and how firms may satisfy such requirements;
• Whether statistical sampling should be used to determine how many magnets to test in a subject magnet product and to reasonably verify the tested sample is representative, particularly for products made up of numerous individual magnets;
• The proposed flux index limit of 50 kG
• Whether the rule should include requirements similar to ASTM F963 to ensure that products do not liberate hazardous magnets after use and abuse testing.
• Whether the rule should include requirements for safety messaging, particularly for products with flux indexes within the permissible range for which there is uncertainty about the flux indexes that can cause internal interaction hazards;
• Whether the rule should include requirements for packaging, particularly for products with flux indexes within the permissible range for which there is uncertainty about the flux indexes that can cause internal interaction hazards;
• What safety messaging requirements should include, and why they should be included; and
• What packaging requirements should include, and why they should be included.
• Data regarding the level of compliance with existing standards that address magnet ingestions, including ASTM standards.
• The estimates and other valuations used in CPSC's analysis regarding benefits and costs associated with the proposed rule;
• The annual unit sales of subject magnet products;
• The expected product life of subject magnet products;
• The number of subject magnet products subject to the proposed rule;
• The accuracy and reasonableness of the benefits estimates;
• Information about the costs to consumers associated with the proposed rule, including consumer needs for subject magnet products, and the potential impact of the proposed rule on the utility, cost, and availability of subject magnet products for those needs;
• The accuracy and reasonableness of the cost estimates for manufacturers and importers (if available, sales or other shipment data would be helpful);
• The potential impact of the proposed rule on small entities;
• Costs associated with testing and certification requirements, including requirements in section 14 of the CPSA, particularly for small businesses;
• Potential modifications to subject magnet products to comply with the proposed rule, and the costs associated with those modifications;
• The types and magnitude of manufacturing costs that might disproportionately impact small businesses or were not considered in the agency's analysis;
• The different impacts on small businesses associated with different effective dates; and
• Other alternatives that would minimize the impact on small businesses while reducing the magnet ingestion hazard.
• The reasonableness of the proposed 30-day effective date and recommendations for a different effective date, if justified. Comments recommending a longer effective date should describe the problems associated with meeting the proposed effective
• Whether the Commission should consider including in the rule anti-stockpiling provisions to prevent manufacturing or importing of non-compliant subject magnet products at an increased rate during the period between announcing a final rule and the effective date of the rule; and
• Information relevant to whether an anti-stockpiling provision is necessary.
Section 9(d)(1) of the CPSA requires the Commission to promulgate a final consumer product safety rule within 60 days of publishing a proposed rule. 15 U.S.C. 2058(d)(1). Otherwise, the Commission must withdraw the proposed rule if it determines that the rule is not reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with the product, or is not in the public interest.
The Commission finds that there is good cause to extend the 60-day period for this rulemaking. Under both the Administrative Procedure Act and the CPSA, the Commission must provide an opportunity for interested parties to submit written comments on a proposed rule. 5 U.S.C. 553; 15 U.S.C. 2058(d)(2). The Commission typically provides 75 days for interested parties to submit written comments. A shorter comment period may limit the quality and utility of information CPSC receives in comments, particularly for areas where it seeks data and other detailed information that may take time for commenters to compile. In addition, the CPSA requires the Commission to provide interested parties with an opportunity to make oral presentations of data, views, or arguments. 15 U.S.C. 2058. This requires time for the Commission to arrange a public meeting for this purpose, and provide notice to interested parties in advance of that meeting. After receiving written and oral comments, CPSC staff must have time to review and evaluate those comments.
These factors make it impractical for the Commission to issue a final rule within 60 days of this proposed rule. Moreover, issuing a final rule within 60 days of the NPR may limit commenters' ability to provide useful input on the rule, and CPSC's ability to evaluate and take that information into consideration in developing a final rule. Accordingly, the Commission finds that there is good cause to extend the 60-day period.
For the reasons stated in this preamble, the Commission proposes requirements for subject magnet products to address an unreasonable risk of injury associated with ingestion of such products.
Administrative practice and procedure, Audit, Consumer protection, Reporting and recordkeeping requirements, Third-party conformity assessment body.
Consumer protection, Imports, Incorporation by reference, Safety.
For the reasons discussed in the preamble, the Commission proposes to amend Title 16 of the Code of Federal Regulations as follows:
Pub. L. 110-314, section 3, 122 Stat. 3016, 3017 (2008); 15 U.S.C. 2063.
(b) * * *
(52) 16 CFR part 1262, Safety Standard for Magnets.
15 U.S.C. 2056, 2058
(a)
(b)
(i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or
(ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise.” The term does not include products that are not customarily produced or distributed for sale to, or for the use or consumption by, or enjoyment of, a consumer.
(c)
In addition to the definitions given in section 3 of the Consumer Product Safety Act (15 U.S.C. 2052), the following definitions apply for purposes of this part 1262:
(a)
(b)
Each loose or separable magnet in a
(a) Select at least one loose or separable magnet of each shape and size in the
(b) Measure the flux index of each selected magnet in accordance with the procedure in section 8.25.1 through 8.25.3 of ASTM F963-17,
(a)
(b)
(2) The potential injuries when a child or teen ingests one or more magnets are serious. Health threats posed by magnet ingestion include pressure necrosis, volvulus, bowel obstruction, bleeding, fistulae, ischemia, inflammation, perforation, peritonitis, sepsis, ileus, ulceration, aspiration, and death, among others. These conditions can result from magnets attracting to each other through internal body tissue, or a single magnet attracting to a ferromagnetic object. CPSC is aware of several fatal magnet ingestion incidents that occurred in the United States, resulting from internal interaction of the magnets (small intestine ischemia and volvulus).
(c)
(d)
(2) Retail prices of subject magnet products generally average under $20. CPSC has identified subject magnet products that comply with the proposed rule, indicating that the cost of compliant and non-compliant products are comparable.
(3) If the costs associated with redesigning or modifying subject magnet products to comply with the proposed rule results in manufacturers discontinuing products, there may be some loss in availability to consumers. However, this would be mitigated to the extent that compliant products meet the same consumer needs.
(e)
(2) Another alternative is a mandatory standard with less stringent requirements than the proposed rule, such as a higher flux index limit, or different requirements for certain shapes and sizes of magnets. This could reduce the costs associated with a rule by allowing firms to market a wider variety of products than under the proposed rule. However, for this alternative to reduce costs, it would allow more products to remain on the market, thereby decreasing the safety benefits.
(3) Safety messaging requirements are another alternative to the proposed rule. This would reduce the costs associated with the rule because it would not require modifying or discontinuing subject magnet products, and the costs of warnings and instructional information likely would be small. However, this alternative is not likely to adequately reduce the risk of injury and death associated with magnet ingestion because the effectiveness of safety
(4) Another alternative is to require special packaging to limit children's access to subject magnet products. Such packaging could help consumers determine if all magnets have been returned to the container and include child-resistant features. Although this alternative would create some packaging costs, those likely would be lower than the costs associated with the proposed rule because it would allow subject magnet products to remain unchanged. However, this alternative is not likely to adequately reduce the risk of injury and death associated with magnet ingestions. For packaging requirements to be effective, users would have to repackage all magnets after each use, which is unlikely given the small size and large number of magnets often in a product, the potential to lose magnets, and consumers' demonstrated underappreciation of the hazard. In addition, packaging requirements are unlikely to be effective because they generally only restrict young children (under 5 years old) from accessing package contents, and would not prevent older children or teens from accessing the package contents, although the majority of magnet ingestion incidents involved children 5 years and older.
(5) Another alternative is to require subject magnet products to be coated with aversive agents. This alternative would reduce the costs associated with the rule because it would allow firms to continue to sell subject magnet products and the costs of such coatings likely would be small. However, such requirements are not likely to adequately reduce the risk of injury and death associated with magnet ingestions because they do not address ingestions that occur when the first magnet is placed in the victim's mouth, before the aversive agent is detected, accidental ingestions, or children who are developmentally inclined to place objects, including unpalatable substances, in their mouths.
(6) Another alternative is to provide a longer effective date for the final rule. This may reduce the costs associated with the rule by spreading them over a longer period, but it would also delay the safety benefits of the rule.
(f)
(2) The potential injuries when a person ingests one or more magnets are serious. Health threats posed by magnet ingestion include pressure necrosis, volvulus, bowel obstruction, bleeding, fistulae, ischemia, inflammation, perforation, peritonitis, sepsis, ileus, ulceration, aspiration, and death, among others. These conditions can result from magnets attracting to each other through internal body tissue, or a single magnet attracting to a ferromagnetic object. Magnet ingestion incidents commonly result in hospitalization, particularly when subject magnet products are ingested. The Commission is aware of five fatal magnet ingestion incidents that occurred in the United States between November 24, 2005 and January 5, 2021. Four of these incidents involved children 2 years old or younger, and all five victims died from injuries resulting from internal interaction of the magnets. Four of the five incidents identified the products as magnet sets, amusement products, or described them as having characteristics that are consistent with subject magnet products.
(3) For these reasons, the Commission preliminarily concludes that the rule is reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with the product.
(g)
(h)
(2) None of these standards apply to all of the products most commonly identified in magnet ingestion incidents—magnet sets intended for users 14 years and older, magnet toys intended for users 14 years and older, and jewelry. Even for the products the standards do address, several standards provide exceptions for certain amusement and jewelry products, imposing only warning requirements for those products.
(3) In addition, several of the standards do not impose performance requirements on magnet themselves, such as size and strength requirements, instead recommending or requiring safety messaging or packaging. CPSC does not consider safety messaging or packaging requirements sufficient, without additional performance requirements, to adequately reduce the risk of injury and death associated with
(4) For these reasons, the Commission preliminarily concludes that compliance with existing standards is not likely to result in the elimination or adequate reduction of the risk of injury associated with magnet ingestion.
(i)
(2) On a per unit basis, CPSC estimates the expected benefits per unit to range from $160 (assuming a 1.5-year product life and a 3 percent discount rate) to $190 (assuming a 3-year product life and a 3 percent discount rate). The estimated expected cost to manufacturers per unit is between about $5 and $10, and there is an unquantifiable cost to consumers associated with lost utility and availability.
(3) Based on this analysis, the Commission preliminarily finds that the benefits expected from the rule bear a reasonable relationship to its anticipated costs.
(j)
(2) Another alternative is a mandatory standard with less stringent requirements than the proposed rule, such as a higher flux index limit, or different requirements for certain shapes and sizes of magnets. This could reduce the burden associated with a rule by allowing firms to market a wider variety of products than under the proposed rule. However, this alternative would reduce the safety benefits because allowing certain hazardous magnets in subject magnet products to remain on the market does not address the hazard such products pose.
(3) Safety messaging is another alternative to the proposed rule. This alternative would reduce the burdens associated with the rule because it would not require modifying or discontinuing subject magnet products, and the costs of such warnings and instructional information likely would be small. However, this alternative is not likely to adequately reduce the magnet ingestion hazard. Safety messaging is generally the least effective way to reduce hazards associated with consumer products; incident data shows children commonly access ingested magnets from sources that do not include product packaging, where warnings are provided; incident data, behavioral and developmental factors, and other information indicate that children and caregivers commonly disregard safety messaging regarding the magnet ingestion hazard; and this approach has not been effective at adequately reducing the hazard, to date.
(4) Another alternative is to require special packaging to limit children's access to subject magnet products. Such packaging could help consumers determine if all magnets have been returned to the container and include child-resistant features. Although this alternative would create some packaging costs, those costs likely would be lower than the proposed rule because it would allow subject magnet products to remain unchanged. However, this alternative is not likely to adequately reduce the risk of injury and death associated with magnet ingestions. Consumers are unlikely to repackage all magnets after each use, given the small size and large number of magnets in products, the potential to lose magnets, and consumers' demonstrated underappreciation of the hazard. In addition, packaging requirements would only prevent young children (typically, children under 5 years old) from accessing the product, not older children or teens, who are involved in the majority of magnet ingestion incidents.
(5) Another alternative is to require subject magnet products to be coated with aversive agents. This alternative would reduce the burden associated with the rule because it would allow firms to continue to sell subject magnet products and the costs of such coatings likely would be small. However, such requirements are not likely to adequately address the hazard because they do not address ingestions that occur when the first magnet is placed in the victim's mouth, before the aversive agent is detected, accidental ingestions, or children who are developmentally inclined to place objects in their mouths.
(6) Another alternative is to provide a longer effective date for the final rule. This may reduce the burdens associated with the rule by spreading them over a longer period, but it would also delay the safety benefits of the rule.
(7) For these reasons, the Commission preliminarily finds that the rule imposes the least burdensome requirement that prevents or adequately reduces the risk of injury associated with magnet ingestions.