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Agricultural Marketing Service, USDA.
Final rule.
This rule amends the National List of Allowed and Prohibited Substances (National List) section of the United States Department of Agriculture's (USDA) organic regulations to implement recommendations submitted to the Secretary of Agriculture (Secretary) by the National Organic Standards Board (NOSB). This rule allows the following substances for organic production: potassium hypochlorite to treat irrigation water used in organic crop production and fatty alcohols for sucker control in organic tobacco production. This rule also removes the listing for dairy cultures, as it is redundant with an existing listing.
This rule is effective on April 22, 2022.
Jared Clark, Standards Division, National Organic Program. Telephone: (202) 720-3252.
On December 21, 2000, the Secretary established the Agricultural Marketing Service's (AMS) National Organic Program (NOP) and the USDA organic regulations (65 FR 80547, December 21, 2000). Within the USDA organic regulations (7 CFR part 205) is the National List of Allowed and Prohibited Substances (or “National List”). The National List identifies the synthetic substances that may be used and the nonsynthetic (natural) substances that may not be used in organic crop and livestock production. It also identifies the nonorganic substances that may be used in or on processed organic products.
AMS is finalizing three amendments to the National List in accordance with the procedures detailed in the Organic Foods Production Act of 1990 (OFPA) (7 U.S.C. 6501-6524). OFPA establishes what may be included on the National List and the procedures that the USDA must follow to amend the National List (7 U.S.C. 6517). OFPA also describes the NOSB's responsibilities in proposing amendments to the National List, including the criteria for evaluating amendments to the National List (7 U.S.C. 6518).
To remain on the National List, substances must be: (1) Reviewed every five years by the NOSB, a 15-member federal advisory committee; and (2) renewed by the Secretary (7 U.S.C. 6517(e)). This action of NOSB review and USDA renewal is commonly referred to as the “sunset review” or “sunset process.” AMS published information about this process in the
This final rule adds potassium hypochlorite and fatty alcohols to the National List. Once the final rule becomes effective, producers of organic crops will be allowed to use these substances in organic production. The permitted use of each substance is discussed in detail in “Overview of Amendments.” This final rule also removes the listing for dairy cultures in 7 CFR 205.605(a). This removal will not affect the allowance of dairy cultures in organic production and organic products as they will continue to be allowed under the microorganisms listing in 7 CFR 205.605(a).
This rule adds potassium hypochlorite and fatty alcohols to the National List for use in organic crop production. This rule also removes dairy cultures from the National List, but their allowance is continued through the microorganisms listing. Additional background on the petitions and the NOSB's review of the substances may be found in the proposed rule (86 FR 15800, March 25, 2021).
During a 60-day comment period that closed on May 24, 2021, AMS received six comments on the proposed rule. See below for a discussion of the comments received and AMS's responses to comments. Comments can be viewed through
The final rule amends the National List to add potassium hypochlorite to 7 CFR 205.601 as a synthetic, chlorine-based sanitizer allowed for use in organic crop production. This amendment allows use of potassium hypochlorite in organic crop production for the purposes of cleaning irrigation equipment and treating irrigation water.
AMS is finalizing this amendment to the National List, as recommended by the NOSB, to provide organic farmers an additional tool for treating irrigation water and cleaning irrigation equipment, which the U.S. Food and Drug Administration (FDA) requires to promote food safety (21 CFR part 112 subpart E). Potassium hypochlorite provides an alternative to sodium hypochlorite, which may cause sodium accumulation in soil with repeated use (sodium hypochlorite is allowed for use at 7 CFR 205.601(a)(2)(iv)).
Following receipt of a petition in November 2018,
After their evaluation, the NOSB concluded that adding potassium hypochlorite to the National List is consistent with evaluation criteria in the OFPA (7 U.S.C. 6518(m)). The NOSB found that use of potassium hypochlorite for irrigation water treatment and cleaning of irrigation equipment would be compatible with organic crop production, providing additional use benefits over sodium hypochlorite (
AMS concludes that the addition of potassium hypochlorite to the National List is consistent with the three requirements of the OFPA (7 U.S.C. 6517(c)(1)(A)). First, when used as labeled for irrigation purposes, the substance is not harmful to human health or the environment. Second, it is necessary because of the absence of wholly natural substitute products. And third, it is consistent with organic farming. This amendment follows the NOSB recommendation according to the procedures established in the OFPA (7 U.S.C. 6517(d)).
AMS received two comments in response to the proposed listing of potassium hypochlorite. The subjects of these comments and responses from AMS are covered in this section. AMS is changing the final listing of potassium hypochlorite in response to one of these comments and to better clarify its use in organic crop production.
AMS did not intend for additional allowances beyond managing irrigation water and equipment. To address this, AMS is finalizing the addition of potassium hypochlorite as the NOSB originally proposed. The finalized annotation will read “for use in water for irrigation purposes.”
NOSB must consider the above criteria when evaluating substances for inclusion on the National List (7 U.S.C. 6518(m)). NOSB considered and discussed these criteria during their Fall 2019 meeting
This final rule amends the National List to add fatty alcohols (C
Fatty alcohols can be derived from fats or oils (most commonly coconut oil, palm kernel oil, lard, tallow, rapeseed oil, soybean oil, and corn oil) or from petroleum products. Applying fatty alcohols to tobacco plants, generally in the presence of a surfactant, selectively kills or inhibits sucker growth. Fatty alcohols are necessary to provide a safer and effective method of de-suckering tobacco plants. Without an allowance for fatty alcohols, farmers would need to rely on manual sucker removal, which would potentially expose workers to nicotine poisoning.
Following receipt of a petition in December 2018,
After their evaluation, the NOSB concluded that adding fatty alcohols to the National List is consistent with the evaluation criteria in the OFPA (7 U.S.C. 6518(m)). The NOSB found that use of fatty alcohols for sucker removal is essential for organic crop production, providing a tool to effectively inhibit sucker growth without exposing workers to the potential health impacts associated with manual desuckering. Additionally, the NOSB acknowledged fatty alcohols readily break down in the environment.
AMS concluded that the addition of fatty alcohols to the National List is consistent with the requirements in the OFPA (7 U.S.C. 6517(c)). First, when used as labeled for desuckering purposes, the substance is not harmful to human health or the environment. Second, it is necessary because of the absence of wholly natural substitute products. And third, due to its natural source material and being easily
AMS received four comments in response to the proposed listing of fatty alcohols for sucker control. The subjects of these comments and responses from AMS are covered in this section.
In support of these claims, the comment cited several sections of the technical report on fatty alcohols. The comment stated that longer-chain fatty alcohols resist hydrolysis and may bioaccumulate and are toxic to aquatic organisms. The comment also quoted sections of the technical report referring to potential sublethal effects on Lepidopteran species. The comment offered an alternative to fatty alcohols—indoleacetic acid—for desuckering. Lastly, the comment asserted that fatty alcohols do not fall into any OFPA categories at 7 U.S.C. 6517(c)(1)(B)(i).
AMS believes the information cited from the technical report was either misunderstood or misquoted. First, while the technical report does state that longer fatty alcohol chains are not expected to hydrolyze readily, the report defines these as having a carbon chain longer than 12.
The comment also stated fatty alcohols do not fit into an OFPA category at 7 U.S.C. 6517(c)(1)(B)(i). AMS acknowledges that the NOSB did not identify an OFPA category for these substances. AMS views the limited use allowance of fatty alcohols to fall under the OFPA category of “production aid,” as identified in the petition. Desuckering is necessary plant maintenance in tobacco production to facilitate growth of the harvestable leaves, reduce pest pressure, and increase crop yield. This narrow use allowance of fatty alcohols aids in the production of organic tobacco by allowing farmers to perform this necessary maintenance task without risk to worker health.
Finally, the comment offered the alternative substance, indoleacetic acid (listed as indole-3-acetic acid by the EPA). While indoleacetic acid may be naturally occurring, it appears the common method of production is a synthetic process that would not be permitted in organic production.
In addition to mentioning the support of certified operations, these comments also indicate the proposed listing is clear and likely will not cause confusion. An additional comment offered general support for the review process and an acknowledgement of the NOSB's robust deliberative process of this substance.
AMS appreciates public engagement in the rulemaking process and agrees with the general support noted above, which mirrors the recommendation by the NOSB. AMS is moving forward with adding this substance to the National List as proposed.
This final rule amends the National List to remove dairy cultures from § 205.605(a) as a nonsynthetic substance allowed for use in organic processed products. This removal is not expected to affect any currently allowed or future products. Any cultures allowed under this listing will continue to be allowed under the listing for microorganisms at § 205.605(a).
Following the sunset review of dairy cultures, the NOSB recommended removing dairy cultures from the National List. As described in the BACKGROUND section, the sunset process is a system of regular evaluation of National List substances against criteria in the OFPA. If a substance is found to no longer satisfy these criteria, the NOSB may recommend removal of the substance.
In its recommendation, the NOSB stated the listing for dairy cultures was no longer needed, concluding that the allowance of microorganisms at § 205.605(a) provides an alternative to the dairy cultures listing. This recommendation acknowledged the widespread use of dairy cultures and NOSB meeting participants' comments, which confirmed that the removal of the dairy cultures listing will not affect their allowance.
AMS does not believe removing the “dairy cultures” listing will result in widespread confusion or reduced transparency. While AMS acknowledges a preference to have ingredient declarations exactly match the National List allowance, many substances on the National List are known by multiple names, not all of which are listed. If widespread confusion occurs, AMS
AMS acknowledges the desire to keep dairy cultures for sake of flexibility. Regardless of whether dairy cultures remain on the list, any recommended annotation would need to come from the NOSB and go through the rulemaking process. As such, there is no added flexibility or resource savings in maintaining the listing; the process to add dairy cultures with an annotation is similar in time and resources to only adding the annotation. Lastly, AMS does not believe this action is inappropriate for the sunset process, which is intended to regularly evaluate National List substances against the criteria in OFPA at 7 U.S.C. 6518(m). One of these criteria is “alternatives to using the substance in terms of practices or other available materials.” The NOSB's sunset review determined that there are other available materials (microorganisms), rendering this listing unnecessary.
Several other comments were neutral (neither in support of nor in opposition to the removal of the dairy cultures listing). One comment requested further examination of the allowed fermentation processes of microorganisms in general.
AMS appreciates public engagement in the rulemaking process. AMS is moving forward with removing this listing from the National List as proposed.
AMS published notices in the
OFPA authorizes the Secretary to make amendments to the National List based on recommendations developed by the NOSB. The OFPA authorizes the NOSB to develop recommendations for submission to the Secretary to amend the National List and establish a process by which persons may petition the NOSB for the purpose of having substances evaluated for inclusion on or deletion from the National List (7 U.S.C. 6518(k) and (n)). Section 205.607 of the USDA organic regulations permits any person to petition to add or remove a substance from the National List and directs petitioners to obtain the petition procedures from USDA (7 CFR 205.607). The current petition procedures published in the
This proposed rule does not meet the criteria of a significant regulatory action under Executive Order 12866 as supplemented by Executive Order 13563. Therefore, the Office of Management and Budget (OMB) has not reviewed this rule under those Orders.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires agencies to consider the economic impact of each rule on small entities and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to the action. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
The Small Business Administration (SBA) sets size criteria for each industry described in the North American Industry Classification System (NAICS) to delineate which operations qualify as small businesses.
AMS does not expect the economic impact on entities affected by this rule to be significant. The effect of this final rule will allow the use of two additional substances in organic crop production and remove a redundant listing for one substance in organic handling. Adding two substances to the National List will increase regulatory flexibility and provide small entities with more options to use in day-to-day operations. Removal of the substance in organic handling will have no impact as its use will continue to be allowed under another National List allowance.
Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This final rule is not intended to have a retroactive effect. Accordingly, to prevent duplicative regulation, states and local jurisdictions are preempted under OFPA from creating programs of accreditation for private persons or state officials who want to become certifying agents of organic farms or handling operations. A governing state official would have to apply to the USDA to be accredited as a certifying agent, as described in the OFPA (7 U.S.C. 6514(b)). States are also preempted from creating certification programs to certify organic farms or handling operations unless the state programs have been submitted to, and approved by, the Secretary as meeting the requirements of the OFPA (7 U.S.C. 6503-6507).
Pursuant to the OFPA (7 U.S.C. 6507(b)(2)), a state organic certification program that has been approved by the Secretary may, under certain circumstances, contain additional requirements for the production and handling of agricultural products organically produced in the state and for the certification of organic farm and handling operations located within the state. Such additional requirements must: (a) Further the purposes of OFPA; (b) not be inconsistent with OFPA; (c) not be discriminatory toward agricultural commodities organically produced in other States; and (d) not be effective until approved by the Secretary.
In addition, pursuant to 7 U.S.C. 6519(c)(6), this final rule does not supersede or alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601-624), the Poultry Products Inspection Act (21 U.S.C. 451-471), or the Egg Products Inspection Act (21 U.S.C. 1031-1056) concerning meat, poultry, and egg products, respectively, nor any of the authorities of the Secretary of Health and Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301
No additional collection or recordkeeping requirements are imposed on the public by this final rule. Accordingly, Office of Management and Budget (OMB) clearance is not required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, Chapter 35.
This final rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments. Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on: (1) Policies that have tribal implication, including regulation, legislative comments, or proposed legislation; and (2) other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the federal government and Indian Tribes.
AMS has assessed the impact of this final rule on Indian Tribes and determined that this rule would not have tribal implications that require consultation under Executive Order 13175. AMS hosts a quarterly teleconference with tribal leaders when matters of mutual interest regarding the marketing of agricultural products are discussed. Information about the proposed changes to the regulations are shared during these quarterly calls, and tribal leaders have the opportunity to comment on the proposed changes.
Pursuant to the Congressional Review Act (5 U.S.C. 801
This final rule reflects recommendations submitted by the NOSB to the Secretary to add two substances to the National List and remove one substance from the National List.
Administrative practice and procedure, Agricultural commodities, Agriculture, Animals, Archives and records, Fees, Imports, Labeling, Livestock, Organically produced products, Plants, Reporting and recordkeeping requirements, Seals and insignia, Soil conservation.
For the reasons set forth in the preamble, AMS amends 7 CFR part 205 as follows:
7 U.S.C. 6501-6524.
The revisions and addition read as follows:
(a) * * *
(2) * * *
(iv) Potassium hypochlorite—for use in water for irrigation purposes.
(v) Sodium hypochlorite.
(k) As plant growth regulators.
(1) Ethylene gas—for regulation of pineapple flowering.
(2) Fatty alcohols (C6, C8, C10, and/or C12)—for sucker control in organic tobacco production.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule.
This final rule amends the test procedures for water closets and
The effective date of this rule is April 22, 2022. The final rule changes will be mandatory for product testing starting September 19, 2022. The incorporation by reference of certain material listed in this rule is approved by the Director of the Federal Register as of April 22, 2022.
The docket, which includes
A link to the docket web page can be found at
For further information on how to review the docket contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
Mr. Bryan Berringer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-0371. Email
Mr. Matthew Ring, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-2555. Email:
DOE incorporates by reference the following industry standard into part 430:
ASME A112.19.2-2018/CSA B45.1-18, “Ceramic plumbing fixtures,” July 2018 (including Errata—October 2018) (“ASME A112.19.2-2018”).
Copies of ASME A112.19.2-2018 can be obtained from American Society of Mechanical Engineers at Three Park Avenue, New York, NY 10016-5990, 1-800 843-2763, or by going to
For a further discussion of this standard, see section IV.N of this document.
Water closets and urinals are included in the list of “covered products” for which the U.S. Department of Energy (“DOE”) is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6292(a)(17) and (18)) DOE's energy conservation standards and test procedures for water closets and urinals are currently prescribed at title 10 Code of Federal Regulations (“CFR”) 430.23(u) and (v), respectively, and 10 CFR part 430, subpart B, appendix T (“appendix T”). The following sections discuss DOE's authority to establish test procedures for water closets and urinals and relevant background information regarding DOE's consideration of test procedures for this equipment.
The Energy Policy and Conservation Act, as amended (“EPCA”),
The energy conservation program under EPCA consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards
The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA (42 U.S.C. 6295(s)), and (2) making representations about the efficiency of those products (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))
Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy and water conservation testing, labeling, and standards. (42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6297(d))
Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending
EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product, including water closets and urinals, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect water use, and estimated operating costs during a representative average use cycle or period of use. (42 U.S.C. 6293(b)(1)(A))
If the Secretary determines, on her own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the
EPCA also directs that the test procedures for water closets and urinals are to be the test procedures specified in American Society of Mechanical Engineers (“ASME”) A112.19.6—1990, “Hydraulic Requirements for Water Closets and Urinals” (“ASME A112.19.6-1990”). (42 U.S.C. 6293(b)(8)(A)) EPCA further directs that, if the requirements of ASME A112.19.6-1990 are revised at any time and approved by the American National Standards Institute (“ANSI”), DOE must amend the Federal test procedures to conform to the revised ASME/ANSI standard, unless DOE determines by rule that to do so would not meet the requirements of EPCA that the test procedures be reasonably designed to produce test results which measure water use during a representative average use cycle as determined by DOE, and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(8)(B)) If DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2))
DOE is publishing this final rule in satisfaction of these requirements under EPCA. (42 U.S.C. 6293(b)(1)(A) and (b)(8)(B))
DOE's test procedures for water closets and urinals are found in 10 CFR 430.23(u) and (v), respectively, and appendix T.
On May 20, 2021, DOE published a notice of proposed rulemaking (“NOPR”) presenting DOE's proposals to amend the water closets and urinals test procedures (“May 2021 NOPR”). 86 FR 27281. DOE held a public meeting related to this NOPR on June 16, 2021.
DOE received comments in response to the May 2021 NOPR from the interested parties listed in Table I.1.
A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record.
In this final rule, DOE amends 10 CFR 430.2 (Definitions), 10 CFR 430.3 (Materials Incorporated by Reference), and appendix T as follows:
(1) Incorporate by reference ASME A112.19.2-2018, “Ceramic plumbing fixtures,” with additional clarifying edits in appendix T;
(2) Replace the current term “toilet” with “water closet;” “blowout toilet” and “blowout water closet” with “blowout bowl water closet;” “gravity tank-type toilet” with “gravity flush tank water closet;” and “siphonic water closet” with “siphonic bowl water closet;” and
(3) Add terms and corresponding definitions for “blowout bowl,” “blowout action,” “gravity flush tank water closet,” “siphonic action,” “siphonic bowl,” and “trough-type urinal.”
The adopted amendments are summarized in Table II.1 compared to the test procedure provision prior to the amendment, as well as the reason for the adopted change.
DOE has determined that the amendments described in section III and adopted in this document will not alter the measured water use of water closets and urinals, or require retesting or recertification solely as a result of DOE's adoption of the amendments to the test procedures. Additionally, DOE has determined that the amendments will not increase the cost of testing. Discussion of DOE's actions are addressed in detail in section III of this document.
The effective date for the amended test procedures adopted in this final rule is 30 days after publication of this document in the
This final rule applies to both water closets and urinals, as defined in 10 CFR 430.2. DOE defines a “water closet” as a plumbing fixture that has a water-containing receptor that receives liquid and solid body waste, and upon actuation, conveys the waste through an exposed integral trap seal into a gravity drainage system, except such term does not include fixtures designed for installation in prisons. 10 CFR 430.2. DOE defines a “urinal” as a plumbing fixture that receives only liquid body waste and, on demand, conveys the waste through a trap seal into a gravity drainage system, except such term does not include fixtures designed for installations in prisons.
DOE's test procedures for water closets and urinals in appendix T incorporate by reference ASME A112.19.2-2008,
ASME A112.19.2-2018, the current version of the industry test standard, amends pertinent sections of the 2008 version incorporated into 10 CFR part 430. These amendments include (1) editorial changes and clarification in sections 7.1.2, 7.3.2,
The CA IOUs and PMI recommended that DOE incorporate the latest version of the industry test standard, ASME A112.19.2-2018. (CA IOUs, No. 11 atp. 2; PMI, No. 13 at p. 1) DOE did not receive any other comments regarding the industry standard update. For the reasons discussed in the May 2021 NOPR and presented in the preceding paragraphs, in this final rule DOE incorporates by reference the latest industry test standard, ASME A112.19.2-2018.
DOE also proposed in the May 2021 NOPR to remove references to Sections 7.1 and 8.2 of ASME A112.19.2-2018 in appendix T because those sections were superfluous and did not provide specifications needed for performing the DOE test procedures. DOE requested comments on the proposal. 86 FR 27281, 27284-27285. DOE did not receive any comments on this proposal. DOE removes these superfluous references in this final rule as proposed in the May 2021 NOPR.
Several terms and definitions in ASME A112.19.2-2018 relevant to water closets and urinals vary from those in DOE regulations, including terms not defined in 10 CFR 430.2. In the May 2021 NOPR, DOE proposed amendments to a number of definitions, which are presented in Table III.1, and requested comment on the proposed definitions. 86 FR 27281, 27285-27287.
In response to the May 2021 NOPR, the CA IOUs expressed support for the proposed definitions. (CA IOUs, No. 11 at p. 1) DOE did not receive any other comments on the proposed terms and definitions. In this final rule, DOE incorporates the terms and definitions as proposed in the May 2021 NOPR. DOE has determined that the amendments to the terms and definitions adopted in this final rule provide greater consistency with the referenced industry standard and avoid potential confusion in the use of the terms.
Sections 3.a.(ii) and 3.b of appendix T require water closets and urinals to be tested at various test pressures, as
In the May 2021 NOPR, DOE proposed to maintain the water pressure and averaging requirements in appendix T, consistent with the industry test standard requirements. 86 FR 27281, 27285, 27288.
NRDC and ASAP commented that averaging the high and low water pressure may not make the test procedure representative of installations in higher pressure locations. They cited water loss audit reports in Pennsylvania
PMI commented that DOE's current test method of averaging results at different test pressure should remain unchanged. PMI stated that the requirements are consistent with the industry standards, and that any deviations from these requirements could result in an unnecessary cost burden to manufacturers. (PMI, No. 12 at p. 1)
DOE carefully reviewed the data provided by NRDC and ASAP. DOE notes that the water pressures identified in the datasets provided are system pressures (
DOE does not have data and is not aware of national level data regarding the range of water pressures at point of product installation. However, the range of pressures specified in the DOE test procedures (
Both the Pennsylvania and New Jersey reports discuss that the “Ten State Standards”
EPCA requires that the test procedures for water closets and urinals be reasonably designed to produce test results which reflect water use during a representative average use cycle. (42 U.S.C. 6293(b)(3)) As discussed, the water pressure at point of installation of water closet or urinal may vary from location to location and may also vary at a given location depending on competing water demands at the time of operation. Commenters' suggestion to require compliance at each test pressure would effectively result in test measurements representative of operation at the upper and lower ends of the range of pressures expected in the field, rather than reflecting representative average performance across the range of varying water pressures. Moreover, commenters' suggestion would effectively result in a water closet or urinal basic model being subject to more than one standard, without clear statutory authorization for more than one standard for this product. (See 42 U.S.C. 6292(6)(a)). Therefore, in this final rule, DOE is maintaining the current test pressures and the requirement to average flush volume across test pressures.
In the May 2021 NOPR, DOE also proposed to remove the static pressure requirements for flushometer valve
Appendix T provides additional direction regarding the resolution of the recorded values; rounding of recorded and calculated values; and test set-up as it relates to manufacturer installation instructions, which are not specified in the industry test standard, but needed for compliance purposes. In the May 2021 NOPR, DOE proposed to maintain the additional direction in appendix T. 86 FR 27281, 27289. In response, NRDC and ASAP agreed that the additional directions to the industry standard in appendix T need to be maintained. (NRDC and ASAP, No. 12 at p. 1) DOE continues to maintain the additional directions in this final rule.
DOE also received several comments in response to the May 2021 NOPR regarding the instrument resolution required by the ASME and DOE test procedures. NRDC and ASAP commented that the ASME standard requires an apparatus capable of reading increments not exceeding 0.07 gallons and this lets the results of each test run be rounded down to the nearest 0.07 gallons. NRDC and ASAP asserted that this allows results that may not be representative, or results that may mask differences in performance between models, and allows products to exceed the standard by 0.07 gallons per flush. They noted that the DOE certification reports require rounding to the nearest 0.01 gallons. Accordingly, NRDC and ASAP recommended that DOE increase the required resolution of the test procedure water use measurement to 0.01 gallons and require rounding the test results to the nearest 0.01 gallons. Alternatively, they commented that absent more precise measurement increments, DOE should consider increasing the number of repetitions at each pressure to five tests and require five models to be tested for each basic model. (Efficiency Advocates, No. 12 at pp. 1-3)
PMI opposed DOE implementing an instrument resolution of 0.01 gallons and urged DOE to maintain the current resolution specifications. PMI stated that changing the industry standard specification of rounding down to the nearest 0.07 gallon would cause some water closets that are currently compliant with standards to no longer be compliant. PMI stated that although the instruments and equipment have a resolution of 0.01 gallons and fall within the tolerances of calibration, fill valves on plumbing products are inexact and often have variations between flushes that are greater than 0.01 gallons. PMI stated that this is impacted by the water line and by manufacturing tolerances. PMI asserted that manufacturers need to be able to round down the total flush volume to the nearest 0.07 gallons to account for such factors. PMI stated that changing the current instrument resolution of 0.07 to a value of 0.01 to match the DOE reporting requirements would require manufacturers and test labs to provide additional investments in equipment and training, as well as the necessary re-testing and re-certification. PMI stated that it is unaware of any effort to subvert the water saving goals provided by the current test procedures, and that third party testing and certification requirements in Section 7.3 of ASME A112.19.2/CSA B45.1 adds additional layers of safeguards against such manipulation. (PMI, No. 13 at p. 2)
The rounding resolution in Sections 7.3.2 and 8.6.1 of ASME A112.19.2-2018 reflects the resolution specifications of the equipment required for use in the test procedures, including the receiving vessel, the load cell and other apparatus capable of measuring volumes (at 0.07 gallons, or 0.25 liters). As noted by PMI, although the instruments and equipment used in testing often have a resolution of 0.01 gallons, the larger tolerance at 0.07 gallons is to allow variations with inexact fill valves and manufacturing tolerances. Further, Section 7.3.3 and 8.6.2 of ASME A112.19.2-2018 requires that the tests be repeated three times at each of the test pressures. In addition, DOE sampling requirements for represented values of water consumption require that the minimum number of units tested shall be no fewer than two.
Consistent with comments from PMI, DOE has no evidence to suggest that manufacturers are using rounding requirements as a means to exploit compliance with water conservation standards for these products. DOE expects that changes in equipment resolution and rounding requirements or any considerations to increase repetitions at each pressure would require currently certified water closets and urinals to be retested and recertified. Requiring improved resolution or more tests would create additional manufacturer burden without clear benefits, given the testing and sampling requirements discussed. For all the reasons presented, DOE is maintaining the current specifications in appendix T regarding measurement and rounding specifications.
In response to the May 2021 NOPR, CA IOUs commented that they support DOE continuing to evaluate integrating connected (
In the May 2021 NOPR, DOE proposed to replace the language “the maximum permissible water use allowed” in 10 CFR 430.23(u) and 10 CFR 430.23(v) with “the water use”. DOE noted that this amendment would clarify that the DOE test procedures measure water use, whereas the standards in 10 CFR 430.32(q) and (r) establish the maximum allowable water use for water closets and urinals, respectively. DOE requested comment on this proposal. 86 FR 27281, 27290. DOE did not receive any comments on this proposal. For the reasons discussed in the May 2021 NOPR, DOE incorporates these edits in this final rule.
In this final rule, DOE has also modified 10 CFR 430.23(q) to incorporate all water closet types and their maximum flush rates into one centralized table. The dates when each energy conservation standards are applicable are shown in the table. This section was updated for ease of reading and added clarity only. DOE notes that the energy conservation standards based on each water closet type remains unchanged with this update.
In this final rule, DOE has also added additional clarification in appendix T to describe that when measuring the flush volume at a given pressure, manufacturers are to average the individual flush volumes at a given pressure from the three tests. The final measured flush volume for each unit, is the average of the total flush volumes recorded at each test pressure. This update aligns with the industry standard and does not change current practices. The additions only provide clarity to the order of averaging tests when conducting the flush volume test for water closets and urinals. As such, DOE has adopted these clarifications in this final rule.
Lastly, in this final rule, DOE has made minor editorial changes to some of the language in appendix T to improve readability. This includes text consistent with ASME A112.19.2-2018 clarifying the sequence of averaging and converting the water closet standards from text into a chart substantively the same as the proposed regulatory text. These edits do not impact the results of the test procedure and as such, are adopted in this final rule.
In this final rule, DOE amends the test procedures for water closets and urinals to reference the most recent update to the relevant industry standard, ASME 112.19.2-2018. In addition, DOE is also amending certain definitions, and adding definitions for a number of terms which are currently used in the Federal test procedures but not defined. The adopted amendments are consistent with current industry standards, and therefore would not impact the measured values of water use for water closets and urinals under appendix T, assuming current industry practice is to follow those standards. In accordance with EPCA, DOE has determined that these adopted amendments will not be unduly burdensome for manufacturers to conduct. Further, DOE has determined that the adopted test procedure amendments will not impact testing costs already experienced by manufacturers.
The effective date for the adopted test procedure amendment will be 30 days after publication of this final rule in the
The Office of Management and Budget (“OMB”) has determined this test procedure rulemaking does not constitute a “significant regulatory action” under section 3(f) of Executive Order (“E.O.”) 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (“OIRA”) in OMB.
The Regulatory Flexibility Act (5 U.S.C. 601
In the May 2021 NOPR, DOE tentatively concluded that the impacts of the test procedure amendments proposed in the NOPR would not have a “significant economic impact on a substantial number of small entities,” and that the preparation of an initial regulatory flexibility analysis (IRFA) was not warranted, and that DOE would transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review.
As stated, the amendments adopted in this final rule amend the test procedures for water closets and urinals, consistent with the most recent version of the referenced industry standard. In addition, DOE amends certain definitions, and adds definitions for the terms currently used in the Federal test procedures, but not currently defined. DOE has determined that the adopted test procedure amendments would not impact testing costs already experience by manufacturers.
The amendments adopted in this final rule would not have significant economic impact on small businesses. The Small Business Administration (“SBA”) considers a business entity to be a small business, if, together with its affiliates, it employs less than a threshold number of workers or earns less than the average annual receipts specified in 13 CFR part 121. The threshold values set forth in these regulations use size standards and codes established by the North American Industry Classification System (“NAICS”).
DOE collected data from DOE's compliance certification database to identify manufacturers of water closets and urinals.
For the same reasons discussed in the May 2021 NOPR, DOE concludes that the cost effects accruing from the final rule would not have a “significant economic impact on a substantial number of small entities,” and that the preparation of a FRFA is not warranted. DOE has submitted a certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).
Manufacturers of water closets and urinals must certify to DOE that their products comply with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including water closets and urinals. (
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
In this final rule, DOE establishes test procedure amendments that it expects will be used to develop and implement future energy conservation standards for water closets and urinals. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
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. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE examined this final rule and determined that it will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. 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
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action resulting in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final rule will 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.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this regulation will not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for 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 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at
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 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 OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
This regulatory action is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; “FEAA”) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition.
The modifications to the test procedure for water closets and urinals adopted in this final rule incorporates testing methods contained in certain sections of the following commercial standards: ASME A112.19.2-2018. DOE has evaluated these standards and is unable to conclude whether it fully complies with the requirements of section 32(b) of the FEAA (
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
In this final rule, DOE incorporates by reference the test jointly published by the American Society of Mechanical Engineers (“ASME”) and the Canadian Standards Association (“CSA Group”) designated ASME A112.19.2-2018. ASME A112.19.2-2018 is an industry-accepted test procedure that measures water consumption for water closets and urinals, and is applicable to products sold in North America. Specifically, the test procedure codified by this final rule references various sections of ASME A112.19.2-2018 that address test setup, apparatus, test conduct, and calculations. These sections of ASME A112.19.2-2018 are Section 7.1.1 “All tests,” Section 7.1.2 “Gravity flush tank water closets,” Section 7.1.3 “Flushometer tank, electro-hydraulic, or other pressurized flushing device water closets,” Section 7.1.4 “Flushometer valve water closets,” Section 7.1.5 “Procedures for standardizing the water supply system,” Section 7.3 “Water consumption test,” Section 8.2.1, Section 8.2.2, and Section 8.2.3, Section 8.6 “Water Consumption Test,” Table 5 “Static test pressures for water closets, kPa (psi),” and Table 6 “Static test pressures for urinals, kPa (psi).”
Copies of ASME A112.19.2-2018 may be purchased from the ASME at Three Park Avenue, New York, NY 10016, 1-800 843-2763, or by going to
The Secretary of Energy has approved publication of this final rule.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.
This document of the Department of Energy was signed on March 17, 2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Signed in Washington, DC, on March 18, 2022.
For the reasons stated in the preamble, DOE amends 10 CFR part 430 as set forth below:
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
The additions read as follows:
(a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the U.S. Department of Energy (DOE) must publish a document in the
(h)
(3) ASME A112.19.2-2018/CSA B45.1-18 (“ASME A112.19.2-2018”), “Ceramic plumbing fixtures”, July 2018 (including Errata—October 2018); IBR approved for appendix T to subpart B.
(u)
(v)
After September 19, 2022, representations made with respect to the water consumption of water closets or urinals must fairly disclose the results of testing pursuant to this appendix.
On or after April 22, 2022 and prior to September 19, 2022 representations, including compliance certifications, made with respect to the water consumption of water closets or urinals must fairly disclose the results of testing pursuant to either this appendix or the appendix as it appeared at 10 CFR part 430, subpart B, in the 10 CFR parts 200 to 499 edition revised as of January 1, 2014. Representations made with respect to the water consumption of water closets or urinals tested within that range of time must fairly disclose the results of testing under the selected version. Given that after September 19, 2022 representations with respect to the water consumption of water closets and urinals must be made in accordance with tests conducted pursuant to this appendix, manufacturers may wish to begin using this test procedure as soon as possible.
DOE incorporated by reference in § 430.3, the entire standard for ASME A112.19.2-2018; however, only enumerated provisions of that document apply to this appendix, as follows. Treat precatory language in ASME A112.19.2-2018 as mandatory for the purpose of testing.
a. Section 7.1.1 “All tests,” including Figures 11 and 12, as specified in section 2.a of this appendix;
b. Section 7.1.2 “Gravity flush tank water closets,” as specified in section 2.a of this appendix;
c. Section 7.1.3 “Flushometer tank, electro-hydraulic, or other pressurized flushing device water closets,” as specified in section 2.a of this appendix;
d. Section 7.1.4 “Flushometer valve water closets,” as specified in section 2.a of this appendix;
e. Section 7.1.5 “Procedures for standardizing the water supply system,” including Figures 11 and 12, as specified in section 2.a of this appendix;
f. Section 7.3 “Water consumption test,” as specified in section 3.a of this appendix, except sections 7.3.4 and 7.3.5;
f. Section 8.2.1, including Figure 12, as specified in section 2.b of this appendix;
g. Section 8.2.2, as specified in section 2.b of this appendix;
h. Section 8.2.3, as specified in section 2.b of this appendix;
i. Section 8.6 “Water Consumption Test,” as specified in section 3.b of this appendix, except sections 8.6.3 and 8.6.4;
j. Table 5 “Static test pressures for water closets, kPa (psi),” as specified in sections 2.a and 3.a of this appendix; and
k. Table 6 “Static test pressures for urinals, kPa (psi)” as specified in sections 2.a and 3.a of this appendix.
In cases where there is a conflict, the language of the test procedure in this appendix takes precedence over ASME A112.19.2-2018.
This appendix sets forth the test requirements used to measure the hydraulic performances of water closets and urinals.
a. When testing a water closet, use the test apparatus and follow the instructions specified in Sections 7.1.1 (including Table 5), 7.1.2, 7.1.3, 7.1.4, and 7.1.5 of ASME A112.19.2-2018). The flushometer valve used in the water consumption test must represent the maximum design flush volume of the water closet. Record each measurement at the resolution of the test apparatus. Round each calculation of water consumption for each tested unit to the same number of significant digits as the previous step.
b. When testing a urinal, use the test apparatus and follow the instructions specified in Sections 8.2.1, 8.2.2, and 8.2.3 (including Table 6) of ASME A112.19.2-2018. The flushometer valve used in the water consumption test must represent the maximum design flush volume of the urinal. Record each measurement at the resolution of the test apparatus. Round each calculation of water consumption for each tested unit to the same number of significant digits as the previous step.
a. Water closets:
(i) Measure the water flush volume for water closets, expressed in gallons per flush (gpf) or liters per flush (Lpf), in accordance with Section 7.3, Water Consumption Test, of ASME A112.19.2-2018. For dual-flush water closets, the measurement of the water flush volume shall be conducted separately for the full-flush and reduced-flush modes and in accordance with the test requirements specified Section 7.3, Water Consumption Test, of ASME A112.19.2-2018. The final measured flush volume for each tested unit is the average of the total flush volumes recorded at each test pressure as specified in Table 5 “Static test pressures for water closets, kPa (psi),” of ASME A112.19.2-2018, based on the average of the individual flush volumes at a given pressure from the three tests.
(ii) Flush volume and tank trim component adjustments: For gravity flush tank water closets, set trim components that can be adjusted to cause an increase in flush volume, including (but not limited to) the flapper valve, fill valve, and tank water level, in accordance with the printed installation instructions supplied by the manufacturer with the unit. If the printed installation instructions for the model to be tested do not specify trim setting adjustments, adjust these trim components to the maximum water use setting so that the maximum flush volume is produced without causing the water closet to malfunction or leak. Set the water level in the tank to the maximum water line designated in the printed installation instructions supplied by the manufacturer or the designated water line on the tank itself, whichever is higher. If the printed installation instructions or the water closet tank do not indicate a water level, adjust the water level to 1±0.1 inches below the top of the overflow tube or, for gravity flush tank water closets that do not contain an overflow tube, 1±0.1 inches below the top rim of the water-containing vessel for each designated pressure specified in Table 5 of ASME A112.19.2-2018.
b. Urinals—Measure water flush volume for urinals, expressed in gallons per flush (gpf) or liters per flush (Lpf), in accordance with Section 8.6, Water Consumption Test, of ASME A112.19.2-2018. The final measured flush volume for each tested unit is the average of the total flush volumes recorded at each test pressure as specified in Table 6 “Static test pressures for urinals, kPa (psi),” of ASME A112.19.2-2018, based on the average of the individual flush volumes at a given pressure from the three tests.
(q)
Federal Aviation Administration (FAA), DOT.
Final special conditions; amendment.
These special conditions are issued for the Dassault Aviation (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 airplane is equipped with an electronic flight-control system that includes pilot controls through a side stick instead of through a conventional wheel or control stick. 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 March 23, 2022.
Todd Martin, Materials and Structural Properties Section, AIR-621, Technical Innovation Policy Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, Washington 98198; telephone and fax 206-231-3210; 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 January 27, 2016 (81 FR 4579). 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 14 CFR 21.17, Dassault 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 are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Dassault 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 will incorporate the following novel or unusual design feature:
This airplane is equipped with an electronic flight-control system that includes pilot controls through a side stick instead of through a conventional wheel or control stick.
The Dassault Model Falcon 6X airplane is equipped with a side stick instead of a conventional wheel or control stick. The requirement of § 25.397(c), which defines limit pilot forces and torques, applies to conventional wheel or control stick and is therefore not adequate for this new side-stick design with electronic flight controls that affect maneuvering.
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 Final Special Conditions, Request for Comment Special Conditions No. 25-607-SC for the Dassault Model Falcon 5X airplane, which was published in the
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, these
This action affects only certain novel or unusual design features on one model of 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, in lieu of the aileron-control and elevator-control forces specified in § 25.397(c), as part of the type-certification basis for the Dassault Model Falcon 6X airplane.
For airplanes equipped with side-stick controls designed for forces to be applied by one wrist and not arms, the limit pilot forces are as follows.
1. For all components between and including the side-stick control-assembly handle and its control stops:
2. For all other components of the side-stick control assembly, but excluding the internal components of the electrical sensor assemblies, to avoid damage to the control system as the result of an in-flight jam:
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for Bell Textron Inc., Model 412, 412EP, and 412CF helicopters. This AD was prompted by evaluation results showing flight loads that impact the collective lever fatigue life. This AD requires adding a permanent hours time-in-service (TIS) penalty for certain collective levers and prohibits installing those collective levers unless the permanent hours TIS penalty has been added. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective April 27, 2022.
For service information identified in this final rule, contact Bell Textron, Inc., P.O. Box 482, Fort Worth, TX 76101, United States; phone 1-450-437-2862 or 1-800-363-8023; fax 1-450-433-0272; email
You may examine the AD docket at
Hye Yoon Jang, Aerospace Engineer, Delegation Oversight Section, DSCO Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5190; email
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Bell Textron Inc., Model 412, 412EP, and 412CF helicopters. The NPRM published in the
The FAA received comments from one commenter; Bell Textron, Inc. The following presents the comments received on the NPRM and the FAA's response to each comment.
Bell Textron, Inc., requested the FAA revise the penalty nomenclature from “life penalty” to “flight hour penalty” throughout the AD action. Bell Textron, Inc., stated that the penalty is only applied to hours TIS and that the life remains unchanged.
The FAA partially agrees. The FAA agrees to changing the nomenclature; however, the nomenclature typically used in rotorcraft FAA AD actions for domestic products is “hours TIS” (or “total hours TIS”) instead of flight hours (or total flight hours). The FAA has revised that nomenclature accordingly in this final rule.
Bell Textron, Inc., requested the FAA clarify the description of what prompted this AD; specifically that during the evaluation, the additional flight loads
The FAA agrees and has revised this final rule accordingly.
Bell Textron, Inc., requested the FAA make revisions to the Proposed AD Requirements in This NPRM section.
The FAA acknowledges this comment; however, because this section does not exist in a final rule after an NPRM, the commenter's request does not apply.
Bell Textron, Inc., requested the FAA make revisions to the Differences Between This Proposed AD and the Service Information section.
The FAA acknowledges this comment; however, the specified difference has been deleted because of a certain other change. In light of this, the commenter's request no longer applies.
Bell Textron, Inc., requested the FAA revise Note 1 to paragraph (g)(1)(i) to clarify that the specified serial-numbered helicopters require the flight hour (hours TIS) penalty after delivery.
The FAA partially agrees. The FAA agrees to clarify that the specified serial numbers are identified as needing the penalty applied. Accordingly, the FAA has revised Note 1 to paragraph (g)(1)(i) in this final rule to identify the specified serial numbers as being originally delivered with a Strake and FF system installed and needing the flight hour (hours TIS) penalty on collective lever P/N 412-010-408-101 applied.
Bell Textron, Inc., requested the FAA delete Note 2 to paragraph (g)(1)(ii) because it would be redundant with incorporation of changes to the required actions it requested pertaining to helicopters with a Strake and FF system P/N 412-705-040-101 installed after delivery from the manufacturer.
The FAA agrees and has deleted Note 2 to paragraph (g)(1)(ii) in this final rule.
Bell Textron, Inc., requested the FAA make changes to the penalty calculation requirement for helicopters with a Strake and FF system P/N 412-705-040-101 installed after delivery from the manufacturer because the calculation needs to provide the remaining time for those affected collective levers.
The FAA agrees and has revised that requirement in this final rule.
Bell Textron, Inc., requested the FAA delete the penalty requirement for helicopters without a Strake and FF system P/N 412-705-040-101 installed because the evaluation results did not show grounds for a flight hour penalty for those helicopters, and according to Bell Textron, Inc., requiring the penalty would create unreasonable economic losses resulting from premature replacement of the collective lever.
The FAA agrees and has revised this final rule accordingly.
Bell Textron, Inc., requested the FAA revise the prohibition of installing a new (zero total hours TIS) collective lever P/N 412-010-408-101 to clarify that the prohibition requirement is for helicopters with a Strake and FF system P/N 412-705-040-101 installed because a penalty of 5,000 hours TIS is not justified for a new (zero total hours TIS) collective lever P/N 412-010-408-101 installed on a baseline configuration aircraft (without a Strake and FF system).
The FAA agrees and has revised this final rule accordingly.
Bell Textron, Inc., requested the FAA delete the prohibition of installing a used collective lever P/N 412-010-408-101 due to flight evaluation results that do not support flight hour penalty to the collective lever PN 412-010-408-101 on a baseline configuration.
The FAA agrees and has revised this final rule accordingly.
The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
The FAA reviewed Bell Helicopter Alert Service Bulletin 412-12-151, Revision A, dated July 8, 2014. This service information specifies procedures for adding a permanent flight hour (hours TIS) penalty for collective levers installed or previously installed on helicopters with a Strake and FF system P/N 412-705-040-101.
The service information specifies adding the permanent life penalty at the next scheduled inspection, whereas this AD requires that action within 50 hours TIS after the effective date of this AD instead.
The FAA estimates that this AD affects 96 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 AD.
Replacing a collective lever takes about 2 work-hours and parts cost about $18,237, for an estimated cost of $18,407 per helicopter and up to $1,767,072 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.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator,
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective April 27, 2022.
None.
This AD applies to Bell Textron Inc., Model 412, 412EP, and 412CF helicopters, certificated in any category.
Joint Aircraft System Component (JASC) Code: 2700, Flight Control System.
This AD was prompted by evaluation results showing flight loads that impact the collective lever fatigue life on helicopters with a BLR Aerospace Strake and FastFin (Strake and FF) system installed. The FAA is issuing this AD to prevent fatigue damage and cracking, which could result in failure of the collective lever and subsequent loss of control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 50 hours time-in-service (TIS) after the effective date of this AD:
(i) For helicopters with a Strake and FF system part number (P/N) 412-705-040-101 installed since initial delivery from the manufacturer, add a permanent penalty of 5,000 hours TIS to the total hours TIS indicated on the component history card or equivalent record for the collective lever P/N 412-010-408-101.
(ii) For helicopters with Strake and FF system P/N 412-705-040-101 installed after delivery from the manufacturer, calculate the TIS penalty for collective lever P/N 412-010-408-101 by accomplishing the following:
(A) Verify the component history card or equivalent record of the collective lever and note the total hours TIS.
(B) Determine the remaining hours TIS by subtracting the total hours TIS of the collective lever from its life limit of 10,000 total hours TIS.
(C) Divide the remaining time by 2 and add that number to the existing total hours TIS. This is the new total TIS after being penalized.
(D) Enter the new total TIS after being penalized from paragraph (g)(1)(ii)(C) of this AD to the component history record or equivalent record for the collective lever.
(2) Before further flight, remove from service any collective lever P/N 412-010-408-101 that has reached or exceeded its life limit of 10,000 total hours TIS. Thereafter, remove from service each collective lever P/N 412-010-408-101 on or before reaching its life limit of 10,000 total hours TIS.
(3) As of the effective date of this AD, do not install a new (zero total hours TIS) collective lever P/N 412-010-408-101 on any helicopter with Strake and FF system P/N 412-705-040-101 installed unless a penalty of 5,000 hours TIS has been added to the total hours TIS on its component history card or equivalent record.
(4) As of the effective date of this AD, do not install a used collective lever P/N 412-010-408-101 on any helicopter with Strake and FF system P/N 412-705-040-101 installed unless a penalty is calculated by accomplishing the actions required in paragraph (g)(1)(ii) of this AD.
Special flight permits are prohibited.
(1) The Manager, DSCO 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 certification office, send it to the attention of the person identified in paragraph (j) 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.
For more information about this AD, contact Hye Yoon Jang, Aerospace Engineer, Delegation Oversight Section, DSCO Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5190; email
None.
Federal Energy Regulatory Commission, Energy.
Final rule.
Pursuant to the authority delegated by the Commission's regulations, the Director of the Office of Energy Projects (OEP) computes and publishes the project cost and annual limits for natural gas pipelines blanket construction certificates for each calendar year.
This final rule is effective March 23, 2022 and establishes cost limits applicable from January 1, 2022 through December 31, 2022.
Richard W. Foley, Chief, Certificates Branch 1, Division of Pipeline Certificates, (202) 502-8955.
Section 157.208(d) of the Commission's Regulations provides for project cost limits applicable to construction, acquisition, operation and miscellaneous rearrangement of facilities (Table I) authorized under the blanket certificate procedure (Order No. 234, 19 FERC ¶ 61,216). Section 157.215(a) specifies the calendar year dollar limit which may be expended on underground storage testing and development (Table II) authorized under the blanket certificate. Section 157.208(d) requires that the “limits specified in Tables I and II shall be adjusted each calendar year to reflect the ‘GDP implicit price deflator' published by the Department of Commerce for the previous calendar year.”
Pursuant to § 375.308(x)(1) of the Commission's Regulations, the authority for the publication of such cost limits, as adjusted for inflation, is delegated to the Director of the Office of Energy Projects. The cost limits for calendar year 2022, as published in Table I of
This final rule is effective March 23, 2022. The provisions of 5 U.S.C. 804 regarding Congressional review of Final Rules does not apply to the Final Rule because the rule concerns agency procedure and practice and will not substantially affect the rights or obligations of non-agency parties. The Final Rule merely updates amounts published in the Code of Federal Regulations to reflect the Department of Commerce's latest annual determination of the Gross Domestic Product (GDP) implicit price deflator, a mathematical updating required by the Commission's existing regulations.
Administrative practice and procedure, Natural gas, Reporting and recordkeeping requirements.
Accordingly, 18 CFR part 157 is amended as follows:
15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352.
(d) * * *
(a) * * *
(5) * * *
Food and Drug Administration, HHS.
Notification of availability.
The Food and Drug Administration (FDA, Agency, or we) is announcing the availability of a final guidance for industry entitled “Certain Ophthalmic Products: Policy Regarding Compliance With 21 CFR part 4.” This guidance describes FDA's compliance policy with respect to the requirements of FDA regulations that are now applicable to ophthalmic drugs that are packaged with eye cups, eye droppers, and other dispensers intended for ophthalmic use.
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see § 10.115(g)(5) (21 CFR 10.115(g)(5))).
Submit written requests for single copies of the guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002; Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002; or Office of Policy, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5431, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
John Barlow Weiner, Office of Combination Products, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5129, Silver Spring, MD 20993-0002, 301-796-8930,
FDA is announcing the availability of a guidance for industry entitled “Certain Ophthalmic Products: Policy Regarding Compliance With 21 CFR part 4.” We are implementing this guidance without prior public comment because we have determined that prior public participation is not feasible or appropriate (§ 10.115(g)(2)). We made this determination because FDA needs to communicate its compliance policy in a timely manner given the urgency of these issues following the decision from the U.S. Court of Appeals for the District of Columbia Circuit in
In accordance with § 200.50(c) (21 CFR 200.50(c)), eye cups, eye droppers, and other dispensers intended for ophthalmic use (collectively referred to as ophthalmic dispensers) have been regulated as drugs when packaged together with the ophthalmic drug with which they were intended to be used. Therefore, products consisting of an ophthalmic drug packaged with an ophthalmic dispenser were not regulated as combination products as defined in § 3.2(e) (21 CFR 3.2(e)) and were not subject to the requirements of part 4 (21 CFR part 4). This practice is a departure from how FDA generally regulates other devices that are packaged with the drugs with which they are intended to be used. Specifically, when a device is packaged together with the drug with which it is intended to be used, FDA regulates that drug and the device together as a combination product (see § 3.2(e)).
On April 16, 2021, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in
This change impacts products subject to pending applications,
We recognize that some applicants and manufacturers may need to develop policies and procedures necessary to comply with the requirements in part 4. Therefore, we are issuing the guidance to communicate FDA's compliance policy with respect to these products. The guidance explains FDA's policy with respect to compliance with the requirements of part 4. Specifically, the guidance explains that FDA generally does not intend to take action with respect to noncompliance with part 820 (21 CFR part 820) as described in part 4, subpart A, with respect to ophthalmic products that were not previously regulated as combination products because of the now obsolete language in § 200.50(c) for a period of 12 months following the publication of the guidance. Further, the guidance explains that, with respect to ophthalmic products affected by the
This guidance is being issued consistent with FDA's GGP regulation (§ 10.115). The guidance represents the current thinking of FDA on “Certain Ophthalmic Products: Policy Regarding Compliance With 21 CFR part 4.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in 21 CFR part 314 are approved under OMB control numbers 0910-0001, 0910-0230, and 0910-0291. The collections of information in 21 CFR 600.80 and 600.81 are approved under OMB control number 0910-0308. The collections of information in 21 CFR 606.171 are approved under OMB control number 0910-0458. The collections of information in 21 CFR 803.50, 803.53, and 803.56 are approved under OMB control numbers 0910-0291 and 0910-0437. The collections of information in 21 CFR 806.10 and 802.20 are approved under OMB control number 0910-0359. The collections of information in 21 CFR part 211 have been approved under OMB control number 0910-0139. The collections of information in 21 CFR part 820 are approved under OMB control number 0910-0073. The collections of information in 21 CFR parts 606 and 640 are approved under OMB control number 0910-0116. The collections of information in 21 CFR part 610 are approved under OMB control numbers 0910-0116 and 0910-0338 (also for 21 CFR part 680 and Form FDA 356h). The collections of information in 21 CFR part 1271, subparts C and D, are approved under OMB control number 0910-0543. The collections of information in 21 CFR 4.102, 4.103, and 4.105 are approved under OMB control number 0910-0834.
Persons with access to the internet may obtain the document at
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA or Agency) is amending the standing advisory committees' regulations to change the name and function of the Bone, Reproductive and Urologic Drugs Advisory Committee. This action is being taken to reflect changes made to the charter for this advisory committee.
This rule is effective March 23, 2022. The changes are applicable March 23, 2022.
Teresa Hays, Committee Management Officer, Food and Drug Administration,
FDA is announcing that the name of the Bone, Reproductive and Urologic Drugs Advisory Committee, which was established on March 23, 1978, has been changed. The Agency decided that the name “Obstetrics, Reproductive and Urologic Drugs Advisory Committee” more accurately describes the subject areas for which the committee is responsible. The committee reviews and evaluates data on the safety and effectiveness of marketed and investigational human drug products for use in the practice of obstetrics, gynecology, urology and related specialties, and makes appropriate recommendations to the Commissioner of Food and Drugs. The mandate of the committee no longer includes osteoporosis and metabolic bone disease. As osteoporosis and metabolic bone diseases are topics related to endocrinology and metabolic disease, these will be discussed by the Endocrinologic and Metabolic Drugs Advisory Committee.
The Obstetrics, Reproductive and Urologic Drugs Advisory Committee name was changed, and its functions changed in the charter renewal dated March 23, 2022. In this final rule, FDA is revising 21 CFR 14.100(c)(9) to reflect these changes.
Publication of this final rule constitutes a final action on this change under the Administrative Procedure Act. Under 5 U.S.C. 553(b)(B) and (d)(3) and 21 CFR 10.40(d) and (e)(1), the Agency finds good cause to dispense with notice and public procedure and to proceed to an immediately effective regulation. Such notice and procedures are unnecessary and are not in the public interest because the final rule is merely codifying the new name and the function of the advisory committee to reflect the current committee charter.
Administrative practice and procedure, Advisory committees, Color additives, Drugs, Radiation protection.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under the authority delegated to the Commissioner of Food and Drugs, 21 CFR part 14 is amended as follows:
5 U.S.C. App. 2; 15 U.S.C. 1451-1461, 21 U.S.C. 41-50, 141-149, 321-394, 467f, 679, 821, 1034; 28 U.S.C. 2112; 42 U.S.C. 201, 262, 263b, 264; Pub. L. 107-109; Pub. L. 108-155; Pub. L. 113-54.
(c) * * *
(8)
(ii) Function: The committee reviews and evaluates data on the safety and effectiveness of marketed and investigational human drug products for use in the practice of obstetrics, gynecology, urology and related specialties, and makes appropriate recommendations to the Commissioner of Food and Drugs.
Food and Drug Administration, HHS.
Final rule; notification of administrative stay.
The Food and Drug Administration (FDA or we) is providing notice of a stay of the effectiveness of certain provisions of a final rule published in the
FDA is administratively staying certain provisions in the final rule published on June 11, 2021 (86 FR 31117). FDA will publish a document in the
For access to the docket, go to
Joan Rothenberg, Center for Food Safety and Applied Nutrition, Office of Regulations and Policy, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-2378.
In the
The International Dairy Foods Association (IDFA) and Chobani timely filed objections and requests for a hearing with respect to several provisions in the 2021 final rule (see Objections and Request for Hearings submitted by Michael Dykes, DVM, President and Chief Executive Officer, International Dairy Foods Association, dated July 12, 2021, to the Dockets Management Staff, Food and Drug Administration (Comment ID FDA-2000-P-0126-0109) and Objection and Requests for Hearing submitted by Matthew Graziose, Ph.D., Director, Regulatory Affairs & Compliance, Chobani, dated July 12, 2021, to the Dockets Management Staff, Food and Drug Administration (Comment ID FDA-2000-P-0126-0108)). Section 701(e)(2) of the FD&C Act provides that, until final action is taken by the Secretary, the filing of objections
IDFA's objections were directed at several provisions in § 131.200(a) of the 2021 final rule. IDFA objected to the requirement in § 131.200(a) that yogurt, before the addition of bulky flavoring ingredients, has either a titratable acidity of not less than 0.7 percent, expressed as lactic acid, or a pH of 4.6 or lower. This provision of the 2021 final rule is stayed. FDA notes that the definition and standard of identity established in 1981 included a minimum titratable acidity requirement of 0.9 percent, but that provision was stayed by the filing of objections in 1981 (47 FR 41519 at 41523, September 21, 1982). Consequently, no minimum titratable acidity requirement or maximum pH requirement is in effect.
IDFA also objected to the provision that yogurt, before the addition of bulky flavoring ingredients, contains not less than 3.25 percent milkfat and the provision requiring pasteurized cream, if used as a basic dairy ingredient under § 131.200(b) or an optional dairy ingredient under § 131.200(c), to be added before culturing. These provisions of the 2021 final rule are stayed. However, a minimum milkfat of 3.25 percent before the addition of bulky flavors and the requirement that cream be included in the culturing process remain in effect under the definition and standard of identity established in the 1981 final rule.
Chobani objected to the exclusion of ultrafiltered milk from the basic dairy ingredients in § 131.200(b). This provision is stayed insofar as it prohibits the use of ultrafiltered milk. However, the provision in the 1981 final rule remains in effect with respect to the use of ultrafiltered milk. This means that ultrafiltered milk may not be used as a basic dairy ingredient in the manufacture of yogurt. Because we received no objections to the use of ultrafiltered milk as an optional dairy ingredient under § 131.200(c) of the 2021 final rule, ultrafiltered milk may be used to increase the milk solids, not fat content, of the food above 8.25 percent, provided that the ratio of protein to total nonfat solids of the food and the protein efficiency ratio of all protein present is not decreased as a result.
IDFA also objected to provisions in § 131.200(d) for other optional ingredients. These provisions included § 131.200(d)(2), which limits the use of sweeteners to nutritive carbohydrate sweeteners, and § 131.200(d)(8)(ii), which requires a minimum vitamin D content of 25 percent Daily Value (DV) per reference amount customarily consumed (RACC) if vitamin D is added. Both provisions in the 2021 final rule are stayed. Optional vitamin D addition has been permitted since 1982 at a level of 400 international units per quart (see 47 FR 41519 at 41520 and 41524); this limitation on vitamin D addition remains in effect. The prohibition on the use of sweeteners other than nutritive carbohydrate sweeteners remains in effect under the 1981 final rule's definition and standard of identity. Because we received no objections to permitting the use of all safe and suitable nutritive carbohydrate sweeteners, nutritive carbohydrate sweeteners are no longer limited to those listed under § 131.200(c)(2) in the 1981 final rule.
This notification does not constitute a determination that a hearing is justified on any objections or requests for hearing that have been filed (21 CFR 12.23). Until FDA makes such a determination and issues a notice under 21 CFR 12.28, 12.26, or 12.35, we intend to exercise enforcement discretion with respect to the following:
• Addition of vitamin D to yogurt under § 131.200 and lower fat yogurt products under § 130.10 (21 CFR 130.10) such that the food contains at least 10 percent DV per RACC, within limits of current good manufacturing practices.
• Use of nonnutritive sweeteners in yogurt under § 131.200 and lower fat yogurt products under § 130.10 that are not labeled with a statement of identity that includes an expressed nutrient content claim consistent with the use of nonnutritive sweeteners.
• Use of bulky flavor ingredients in lower fat yogurt products under § 130.10 that increase the total fat content above the level specified in § 101.62(b) (21 CFR 101.62(b)) for the expressed nutrient content claim in the statement of identity, provided that the level of milkfat in the product is consistent with the level specified in § 101.62(b) and the statement of identity also includes a descriptor of the bulky flavor ingredient (
Under this enforcement discretion, we do not intend to take action with respect to yogurt and lower fat yogurt products that meet these criteria provided that the products otherwise conform to the definition and standard of identity under § 131.200 or § 130.10.
Pursuant to section 701(e) of the FD&C Act, we hereby announce that the following provisions of the 2021 final rule are stayed by the objections filed:
1. The requirement in § 131.200(a) that yogurt, before the addition of bulky flavoring ingredients, has either a titratable acidity of not less than 0.7 percent, expressed as lactic acid, or a pH of 4.6 or lower.
2. The requirement in § 131.200(a) that yogurt, before the addition of bulky flavoring ingredients, contains not less than 3.25 percent milkfat.
3. The prohibition in § 131.200(a), (b), and (c) on adding pasteurized cream after culturing.
4. The exclusion of ultrafiltered milk from the basic dairy ingredients in § 131.200(b).
5. The limitation on the use of sweeteners in § 131.200(d)(2) to nutritive carbohydrate sweeteners.
6. The requirement in § 131.200(d)(8)(ii) that vitamin D, if added, must be present in such quantity that the food contains not less than 25 percent DV per RACC, within limits of current good manufacturing practices.
This document hereby confirms the effective date of the 2021 final rule as July 12, 2021, and the compliance date as January 1, 2024, except with respect to the provisions in § 131.200(a), (b), (c), (d)(2), and (d)(8)(ii) stated above, which are stayed.
Department of State.
Interim final rule.
The Department of State is amending the International Traffic in Arms Regulations (ITAR) to better organize the purposes and definitions of the regulations. This rule consolidates and co-locates authorities, general guidance, and definitions.
Interested parties may submit comments by one of the following methods:
•
•
Sarah Heidema, Director, Office of Defense Trade Controls Policy, Department of State, telephone (202) 663-1282; email
The Directorate of Defense Trade Controls (DDTC), U.S. Department of State, administers the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130). The regulations, codified as subchapter M of chapter I, title 22 of the Code of Federal Regulations (“the subchapter”) implement those authorities of the Arms Export Control Act (AECA) (22 U.S.C. 2751
Prior to this rulemaking, generally applicable information and definitions were spread throughout the subchapter. As a result of this rulemaking, part 120 is dividing into three subparts: Subpart A—General Information; Subpart B—General Policies and Processes; and Subpart C—Definitions. The division into subparts is intended to provide the reader with a roadmap for the regulations. Subpart A—General Information, consolidates and explains the legislative authority and purpose of the regulations to aid in understanding their importance and source. Subpart B—General Policies and Processes, outlines the general processes and policies of the ITAR. Finally, Subpart C—Definitions, provides a consolidated list of defined terms that are applicable throughout the ITAR. Part and section-specific information and definitions continue to be located in the applicable part or section of the regulations. DDTC notes that the definitions in subpart C are not included in alphabetical order. DDTC endeavored to include definitions in a logical order so as to provide larger conceptual definitions first, to keep like concepts together, to nest related definitions in single sections, and to match the framework of the regulations. DDTC believes that this structure outweighs any ease in finding a definition through the use of alphabetization, particularly considering modern methods of electronic search. Finally, DDTC believes that the relatively limited number of defined terms within the subchapter makes this subpart manageable in this way.
DDTC is revising those sections affected by this rule that use acronyms to follow a standard format. Where a single term for which there is a known acronym appears on more than two occasions within any one section, the first instance is followed by a parenthetical containing the acronym and subsequent use of the term is by acronym. This will provide consistency of format without sacrificing clarity and limits unnecessary text.
The following descriptions explain non-editorial changes in text to sections in this rule. Further, when discussing amended text that also involves the movement of text to a new location or the creation of new text modeled on existing language, the former or existing location is provided. When discussing amended text below, citations are to the section cites of this rule (
Revising the section heading of existing § 120.1 from “General authorities, receipt of licenses, and ineligibility” to “General Authorities” to reflect the revised focus of the section. Revising the introductory paragraph of § 120.1(a) to clarify the manner of delegation by the Secretary of State to the Deputy Assistant Secretary of State for Defense Trade Controls, Bureau of Political-Military Affairs of the authority to administer the ITAR.
Revising the fifth sentence of existing § 120.2 to include a limitation to defense articles and defense services “on the USML in part 121 of this subchapter” in order to account for the delegation to the Attorney General of the authority to designate defense articles and services subject to control for permanent import by section 1(n)(ii) of Executive Order 13637.
Revising existing § 120.4 to limit it to a statement of policy, by relocating its procedural aspects. Former paragraphs (c) through (g) of § 120.4, which provide
Revising the title of § 120.5 to eliminate reference to export of items subject to the EAR in order to more accurately describe the scope of the revised section, which is expanded to include relation to nuclear related controls and the Department of Energy and Nuclear Regulatory Commission (formerly found at § 123.20). In addition, revising § 120.5 to provide introductory headings to each paragraph to identify the related agencies. Revising existing § 120.5(a) by limiting its scope to the relation to the Department of Justice, moving the language regarding the relation to the Department of Commerce beginning at sentence 7 to a new paragraph (b), and by removing the cross-reference to former § 123.20 which is no longer necessary given the addition of § 120.5(c) (formerly found at § 123.20). Revising § 120.5(b)(2) (formerly § 120.5(b)) by moving the sentence that says items subject to the Export Administration Regulations (EAR) but exported under authorization from DDTC do not require separate authorization from the Department of Commerce. That sentence now appears just before the sentence prohibiting the use of ITAR exemptions for items subject to the EAR that are unaccompanied by a defense article. DDTC believes this change minimizes possible confusion regarding requirements for Commerce approval and the use of ITAR exemptions. The change also clarifies that the reference to “these items” in new sentence three applies to the items discussed in sentences one and two. Also, the final parenthetical to § 120.5(b) is removed as an unnecessary restatement of general information.
Revising § 120.6(b) and (d) (formerly found at § 120.27(a)(2) and (4), respectively) to update U.S. Code citations to the Export Administration Act, to add a reference to the Export Control Reform Act, and to reflect the elimination of the Appendix to Title 50.
Revising in § 120.10(a) (formerly found at § 121.1(a)) reference from “[i]n this part” to “part 121 of this subchapter” in order to reflect the move of the “Introduction to the U.S. Munitions List” from part 121 to new subpart A. Revising the paragraph heading in § 120.10(c) (formerly found at § 121.1(a)(2) from “
Adding in § 120.11(c) a statement of the Department's interpretation that defense articles remain controlled following incorporation or integration into non-defense articles.
Revising § 120.12 in its entirety from its former purpose as the address of the Directorate of Defense Trade Controls to a new purpose describing the process for obtaining a CJ determination. The revised section is constructed by moving parts of former § 120.4(a) and all of § 120.4(f) to § 120.12(a) and former § 120.4(c) and (d)(2) to § 120.12(b). Specific reference to part 121 is added to paragraph (a) in order to clarify that DDTC determinations using the CJ process are limited to defense articles and services in that part. Persons with questions regarding the U.S. Munitions Import List (USMIL) should first address those questions to the Bureau of Alcohol, Tobacco, Firearms and Explosives. The references to “designation” (formerly found at § 120.4(d)(2) and (3)) is revised to “determination” in § 120.12(b) and (c) in order to minimize possible confusion regarding commodity jurisdiction determination requests. In addition, a reference to Category XXI (Articles, Technical Data, and Defense Services Not Otherwise Enumerated) is added to paragraph (c) in order to clarify that the determination of the request is that the article or service warrants control, but that at the time of the request the article or service does not meet the criteria of a defense article or defense service on the USML, or provide the equivalent performance capabilities of a defense article on the USML.
Revising in § 120.12(f) (formerly found at § 120.4(b)) the statement regarding registration and the CJ process. The second sentence of former § 120.4(b) regarding the requirement to register following a determination that a commodity is covered by the USML is removed from § 120.12(f) as it is a duplicative statement of the general registration requirements found in part 122 and therefore unnecessary. Removal is for clarification purposes only and does not reflect a change in policy.
Adding in § 120.13(b) a statement of registration policy regarding brokering derived from the requirements of §§ 129.2(a) and 129.3(a). This statement is for clarity and does not reflect a change in policy or regulation.
Adding in § 120.14 a general statement of policy regarding activities that are controlled and require a license or related authorization. Those activities are divided into three paragraphs: (a) Export, reexport, retransfer, or temporary import of defense articles, derived from existing § 123.1(a); (b) furnishing or providing defense services, derived from existing § 124.1(a); and (c) brokering activities, derived from existing § 129.4(a). The general statement of policy is slightly revised from the language of the existing authorization sections in that it distinguishes between authorizations requiring a request for approval to be obtained from DDTC (
Adding in § 120.15(a) an explicit statement that persons otherwise required to register with DDTC may not utilize an exemption without being registered, derived from existing § 120.1(c) and the Note to § 122.1(b). Relocating to § 120.15(b) the statement in former § 120.1(d) that exemptions are not available when parties to the export are generally ineligible. Stating in § 120.15(c) that exemptions generally are not available for use with § 126.1 countries, except as provided in that section. Stating in § 120.15(d) that exemptions are limited as described by each specific exemption section, and adding in § 120.15(f) (formerly found in § 125.6) an overview of the certification requirements to utilize an exemption to the licensing requirements of the ITAR for the export of technical data, which is removed and reserved.
Revising in § 120.16(a)(3) (formerly found at § 120.1(c)(1)(iii)) reference to brokering authorizations from “prior approval” to “approval” to reflect current usage in part 129. Adding in § 120.16(c) (formerly found at § 120.1(c)) a new reference to publicly announced
Adding in § 120.17 a description of the Blue Lantern End-Use Monitoring program. This description did not previously appear in the ITAR, but is added here to provide an explanation to the regulated community of the Department's obligations pursuant to 22 U.S.C. 2785 to vet regulated transactions both before and after licensing determinations.
Revising in § 120.18(a)(2) (formerly found at § 126.7(a)(2)) reference from “Export Administration Act” to “Export Administration Regulations” to more accurately reflect the mechanism through which the Department of Commerce authorizes exports. Revising in § 120.18(a)(6) (formerly found at § 126.7(a)(6)) reference from “debarment” to “order denying export privileges” in relation to Department of Commerce actions in order to reflect the language of the EAR. Adding in § 120.18(a)(9) the statement that an unfavorable finding of an end-use monitoring check may be the basis for disapproving, revoking, suspending, or amending any existing license or license application.
Adding in § 120.19 a general statement in paragraph (a) of the authority to impose penalties for violations of the ITAR and a reference to part 127 (conduct that constitutes a violation), and in paragraph (b) a statement derived from existing § 127.12(a) of the Department's encouragement of the voluntary disclosure of violations when discovered.
Adding in § 120.20 general statements (derived from revised language at existing § 128.1) regarding administrative procedures under the ITAR and the relationship of the AECA to the Administrative Procedure Act, respectively.
Removing in § 120.21(b) (formerly found at § 126.10(b)) reference to section 12(c) of the Export Administration Act, to streamline the text while restating the substantive requirements stated in the AECA.
Creating in § 120.23 a new grouping of various international organizations and arrangements. Revising in § 120.23(a) (formerly found at § 120.31) the description of NATO from a static list of member countries to include reference to admitted member states not listed. This will prevent unnecessary amendment to the section or public confusion regarding references to NATO in the ITAR and the status of member states. Adding in § 120.23(c) reference to the Wassenaar Arrangement on Export Controls not formerly found in the subchapter. Removing in § 120.23(d)(3) (formerly found at § 120.29(c)) an unnecessary reference to the relevant statutory authority regarding Missile Technology Control Regime items and the USML in order to streamline the text.
Revising § 120.37 (formerly found at § 120.8) to more closely follow the definitions structure by beginning the paragraph with the defined term.
Adding in § 120.38 (formerly found at § 120.46) the phrase “or predecessor order” to the definition of classified to conform the single instance definition with the individual definitions of classified previously found within the individual categories of the USML. This change does not expand the applicable scope of the definition of classified. Corresponding changes are made to remove from Categories I through XXI of § 121.1 individual “Note to paragraph” definitions of classified wherever found within the USML.
Revising the section heading from “End-items, components, accessories, attachments, parts, firmware, software, systems, and equipment” to “Compositional terms” to more accurately address the contents of the section (formerly found at § 120.45). The section as formerly written included items that could be either an element of a defense article, or a defense article in and of itself, or might be a part (or component, etc.) of a defense article without being a defense article itself. In order to clarify that the section defines terms that can be used in relation to articles other than defense articles, the section heading is expanded. Other changes include: Adding in § 120.40 a new paragraph (a) to include a single instance definition of commodity, formerly found in Note to paragraphs (a) and (b) of § 120.41, in order to clarify its application throughout the ITAR; and revising the explanatory note to the definition of system in paragraph (h) (formerly found at Note to paragraph (g) of § 120.45) in order to eliminate the redundant second sentence as unnecessary and to limit reference to the relevant source materials and delete the citations to outdated versions of those materials.
Revising existing § 120.41 to move from § 120.41 those notes that contain definitions of broad applicability to single instance definitions in §§ 120.42 and 120.43 and to make certain non-substantive revisions to the order and numbering of notes to the section in accordance with Code of Federal Regulations drafting requirements.
In § 120.42 incorporating single instance definitions of form, fit, function, and performance capability (formerly found at Notes 1 and 2 to paragraph (d) of § 120.4 and Note 4 to paragraph (b)(3) of § 120.41); and single instance definitions of equivalent, enumerated, and catch-all control (formerly found at Note 5 to paragraph (b)(3) and Note to paragraph (b) of § 120.41). Revising in § 120.42(f) (formerly found at Note to paragraph (b) of § 120.41) reference from “article on the U.S. Munitions List” to “item designated on the U.S. Munitions List” to more accurately reflect the constitution of the USML and to distinguish from the reference to “item” in the same sentence as applied to the Export Administration Regulations.
Adding in § 120.43(a) and (b) single instance definitions of development and production formerly found in § 120.41 specifically. These single instance definitions were originally included in a previous proposed rule (80 FR 31525, June 3, 2015), and were to be taken from existing Notes 2 and 1, respectively, to § 120.41(b)(3). Although not adopted at that time, DDTC now implements the revision. In response to the 2015 proposed rule, the Department received several public comments regarding the single instance definitions for
One commenter suggested that the department add “but not limited to” following “such as” in the definition of “development.” The Department does not make this change. The use of the term “such as” necessarily implies that the following list is non-exclusive, so the addition of the phrase “but not limited to” is redundant.
Several commenters requested that the Department insert a note to the definition of “development” to state that fabrication of prototypes by universities for academic demonstration or to otherwise test a hypothesis is not development, because the inclusion of these activities within the definition of “development” somehow limits the fundamental research exception. The Department does not make this change. The Department believes that the activity is appropriately captured by the definition of “development”.
A commenter requested that the Department remove the last sentence of the definition of “development,” which stated “[d]evelopment includes modification of the design of an existing item.” The Department does not make this change. Modification of an existing design creates a distinct design, regardless of the modification.
A commenter suggested that the Department add engineering analysis and design methodology to the definition of “development” in place of design analysis and design concepts, and add manufacturing know-how to the definition of “production” in place of manufacture. The Department does not make this change. The terms suggested by the commenter are used in specific places in the ITAR for specific purposes, and their inclusion within these definitions would not provide additional clarity. Additionally, the definitions of “development” and “production” are being moved from within the definition of specially designed and made applicable to the entire ITAR, in part, to harmonize the definition of “technical data” with the definition of technology in the EAR. To modify these definitions would result in unnecessary variation from the EAR without significant benefit.
One commenter suggested that the Department add the Defense Federal Acquisition Regulations Supplement (DFARS) term “advanced technological development” to the definition of “development.” The Department notes the actual term is “advanced technology development” and does not make this change. While any advanced technology development would be included within this definition of “development,” the value of adding the DFARS term is outweighed by the loss of harmonization with the EAR and multilateral export control regimes.
One commenter suggested that the Department replace the term “serial production” with “production.” The Department does not make this change. Products generally pass through multiple phases of development, some of which may include the production of prototypes or prototype production facilities. All of these activities are included within the development phase of the products.
Several commenters noted that the definition of “production” includes manufacture and assert that this creates a conflict with the definitions of “manufacturing license agreement” (MLA) and “technical assistance agreement” (TAA) in §§ 120.21 and 120.22. The Department does not make any change. An MLA is an “authorization to manufacture defense articles abroad. . . .” There may be an agreement that involves technical data for the production of a defense article that is not an “authorization to manufacture defense articles abroad,” and in these instances, an MLA would not be required. However, in instances where there is an “authorization to manufacture defense articles abroad” that involves the export of technical data, an MLA is required regardless of the type of technical data exported. One commenter noted that the provisions of § 124.4(b)(1) through (4) apply to agreements that involve coproduction or licensed production outside of the United States of defense articles of United States origin, and asserts that the new definition of “production” may implicate some TAAs, in addition to MLAs. The commenter requested that § 124.4(b) be revised to limit the scope of that provision to “licensed manufacturing.” The Department does not make this change. The reporting requirements of § 124.4(b) apply only to “coproduction or licensed production outside of the United States,” which is only authorized via MLAs that involve offshore production. Additional revisions are not necessary.
One commenter stated that the definitions would undermine the utility of the exemption at § 125.4(b)(6), which authorizes the export of technical data “related to firearms not in excess of caliber .50 and ammunition for such weapons, except detailed design, development, production or manufacturing information.” The Department confirms that these definitions do not change the scope of this exemption.
In reviewing the definition of development from the 2015 proposed rule, and not in response to public comment, the Department determined to revise the final sentence of the definition to focus on design rather than items. This is intended to be in keeping with the attempt to better align definitions across the EAR and ITAR, as expressed in the 2015 proposed rule, and to clarify that development is common to pre-production for all goods and is not specific to the USML. Although the final sentence of the definition of development is not found directly in the EAR definition of development, an analogous provision is found in Note 2 to the definition of technology (see 15 CFR 772.1).
Adding in § 120.43(c) through (i) single instance definitions and explanations of terms for design methodology, engineering analysis, manufacturing know-how, build-to-print, build/design-to-specification, basic research, and applied research (the definition of which was formerly found within the definition of basic research and which this rule separates into two definitions), formerly found at §§ 124.2(c)(4) and 125.4(c). Although formerly described in §§ 124.2(c)(4) and 125.4(c), for purposes of clarity as to the application of an exemption the terms were used in other locations in the ITAR, demonstrating that the explanations were intended to have broader applicability. Conforming changes are made to citation references in Category XIII(i)(6) of § 121.1, Supplement No. 1 to part 126, and Note 5 and Note 12 to that supplement. In addition, revisions are made to existing § 124.2(c)(4) to eliminate the unnecessary duplication of definitions of design methodology, engineering analysis, and manufacturing know-how by deleting existing § 124.2(c)(4)(i) through (iii). Also, the parenthetical explanation of build-to-print at existing § 124.13(b) is removed for the same reason.
In § 120.57 consolidating and incorporating single instance definitions for the various authorization types for transactions subject to the ITAR (formerly found in §§ 120.20, 120.21, 120.22 and 120.23) and adding in § 120.57(c) a single instance definition of exemption to provide a single reference for the concept, used throughout the ITAR, for an authorization other than by license or other written approval.
Establishing in § 120.68 (formerly found at § 126.7(e)) a single instance definition of “party to the export”.
Adding a new § 121.0 to provide cross-reference to §§ 120.10 and 120.11, Introduction to the U.S. Munitions List and Order of review, respectively (formerly found at paragraphs (a) and (b) of § 121.1). Removing and reserving paragraphs (a) and (b) of § 121.1. Revising for purpose of consistency only the technical data and defense service definition parentheticals in the technical data paragraphs for all categories previously revised as part of the multi-year process of reviewing and revising the USML as part of the USML to the Commerce Control List (CCL) process, beginning with 78 FR 22740, Apr. 16, 2013. These revisions are not intended to make any substantive change. Previously, these paragraphs used “see” and “as defined in” interchangeably. Removing from the USML those notes to category paragraphs that contain definitions for “classified” in order to preclude any variation from the definition of classified in § 120.38 (formerly found at § 120.46). Removing the parentheticals “(see § 120.4 of this subchapter)” relating to commodity jurisdiction, “(see § 120.42 of this subchapter)” relating to “subject to the EAR”, and the phrase “(see § 120.10(a)(2) of this subchapter)” relating to “classified” as they are either used inconsistently or because they are generally understood by the regulated community and defined elsewhere in the regulations. Finally, cross-references to sections moved by this rule are updated.
Revising § 128.1 to clarify that the Secretary of State has been delegated authority to make licensing decisions.
Revising § 128.2 regarding authorities of an Administrative Law Judge to eliminate reference to § 127.7. This change clarifies that an Administrative Law Judge may only recommend debarment pursuant to that section, and any such order is issued by the Assistant Secretary of State for Political-Military Affairs.
Removing and reserving § 120.26, Presiding Official, as unnecessary as the term does not otherwise appear in the regulations.
Removing the list of forms referenced in the ITAR and formerly found at § 120.28. This section, which provides the list of forms referred to in the ITAR, is being removed in its entirety as an unnecessary inclusion to the regulations. Due to previous revisions to the regulations, the list presented is not accurate. In order to prevent unnecessary regulatory activity in the form of future conforming revisions to the section, due to expected changes to the forms that appear in the regulations, it is being removed and the section reserved.
Reserving § 120.29 (formerly Missile Technology Control Regime) and moving the former text of § 120.29 to paragraph (d) of new § 120.23, Organizations and arrangements.
Reserving § 120.46 (formerly Classified) and moving the former text of § 120.46 to new § 120.38.
Reserving § 123.20 (formerly Nuclear related controls) and moving the former text of § 123.20 to new § 120.5(c).
Reserving § 123.26 (formerly Recordkeeping for exemptions) and moving the requirements of the former § 123.26 to new § 120.15(e).
Reserving § 125.6 (formerly Certification requirements for exemptions) and moving and revising the former text of § 125.6 as described in the discussion of § 120.15 above.
Reserving § 126.7 (formerly Denial, revocation, suspension, or amendment of licenses and other approvals) and moving the former text of § 126.7(a)-(d) and (e) to new §§ 120.18 and 120.68, respectively.
Reserving § 126.9 (formerly Advisory opinions and related authorizations) and moving the former text of § 126.9 to new § 120.22.
Reserving § 126.10 (formerly Disclosure of information) and moving the former text of § 126.10 to new § 120.21.
Reserving §§ 126.11 and 126.12 (formerly Relations to other provisions of law, and Continuation in force, respectively) and moving the former text of each to new § 120.7(a) and (b), respectively.
Removing in its entirety the MTCR Annex formerly found at § 121.16, as the relevant information of the MTCR Annex is conveyed directly through notations in the USML and to eliminate unnecessary sections of the ITAR and the obligation to amend to reflect revisions to the MTCR Annex in both the USML and in former § 121.16, in conjunction with the adoption of reference to the Missile Technology Control Regime in new § 120.23(d).
Revising references to “U.S. Government” from “U.S. government” at §§ 120.11(d), 120.18(a)(6), and 120.34(a)(7).
Revising order and numbering of notes to affected sections in accordance with Code of Federal Regulations drafting requirements.
Revising formatting of cites and signals wherever found for consistency of application.
The following former paragraphs of the ITAR were marked as reserved and are removed by this rule: §§ 120.27(a)(11), 120.27(b), and 125.4(d).
Definitions of general applicability from throughout the subchapter are consolidated in Part 120—Purpose and Definitions, Subpart C—Definitions. These movements are identified in the table below. Cross references are revised throughout the subchapter and efforts were made to standardize certain terminologies (
This rule primarily moves and reorganizes existing regulatory text without revision. Much of this text was drafted at different times, by different authors. The Department intends to propose additional revisions to regulatory text to improve readability and flow.
The table below identifies to the sentence level all:
1. Movements or renumbering of text made by this rule from their former location to the location as effected by this rule. The former location of moved text is italicized.
2. All text revised in any manner by this rule, whether moved or not. Revised sections, paragraphs, and text locations appear in bold.
3. All text removed/reserved from the ITAR in any location. Removed sections, paragraphs, and text locations appear as strikethrough.
4. Any new general information text sections that are derived from an existing ITAR section which is not revised or removed are identified in the “Model for” column and the source material identified by underlined text.
5. Where a section or paragraph is moved, revised, and/or formed the basis for new text elsewhere, it is identified by each font type (
6. Each level (to the sentence) of any section affected by this rule is identified by a unique row and then by font type within the row. For example, the first six rows of the table identify changes to § 120.1. Row 1 shows § 120.1 in bold, indicating a change to the text of the section title. Row two shows paragraph (a) in bold, indicating a change to the text of that paragraph. Row three shows
7. Where consecutive paragraphs within a section are affected in the same manner, they are combined into a single row. See,
The Department of State is of the opinion that controlling the import and export of defense articles and services is a military or foreign affairs function of the United States Government and that rules implementing this function are exempt from sections 553 (rulemaking) and 554 (adjudications) of the Administrative Procedure Act (APA). Although the Department is of the opinion that this interim final rule is exempt from the rulemaking provisions of the APA, the Department is publishing this rule as an interim final rule and with a 45-day provision for public comment and without prejudice to its determination that controlling the import and export of defense services is a foreign affairs function.
Since the Department is of the opinion that this interim final rule is exempt from the provisions of 5 U.S.C. 553, there is no requirement for an analysis under the Regulatory Flexibility Act.
This amendment 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 rulemaking has been found not to be a major rule within the definition of Small Business Regulatory Enforcement Fairness Act of 1996.
This rulemaking 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 rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.
Executive Orders 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, distributed impacts, and equity). These executive orders stress the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Although the Department is of the opinion that this rulemaking is exempt from Executive Order 12866 as this rule pertains to a military or foreign affairs function of the United States as provided in Section 3(d)(2), the Department nevertheless has determined that, given the nature of the amendments made in this rulemaking, there will be no change to any person's substantive rights or obligations as a result of this rule, and the only cost to the public, the cost of updating compliance regimes to account for the movement of regulatory text within the ITAR, is less than the benefit to the public in the increased utility of the ITAR. Therefore, the benefits of this rulemaking outweigh the cost. This rule has been designated a “significant regulatory action,” although not economically significant, by the Office and Information and Regulatory Affairs under Executive Order 12866.
The Department of State reviewed this rulemaking in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.
The Department of State determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, Executive Order 13175 does not apply to this rulemaking.
This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
Arms and munitions, Classified information, Exports.
Arms and munitions, Exports, Reporting and recordkeeping.
Arms and munitions, Exports, Technical assistance.
Arms and munitions, Exports.
Arms and munitions, Crime, Exports, Penalties, Seizures and forfeitures.
Administrative practice and procedure, Arms and munitions, Exports.
Arms and munitions, Brokers, Exports.
Arms and munitions, Campaign funds, Confidential business information, Exports, Reporting and recordkeeping requirements.
Accordingly, for the reasons set forth above and under the authority of 22 U.S.C. 2778, and 22 U.S.C. 2779, the Department of State amends title 22, chapter I, subchapter M, parts 120 through 130 as follows:
22 U.S.C. 2651a, 2752, 2753, 2776, 2778, 2779, 2779a, 2785, 2794, 2797; E.O. 13637, 78 FR 16129, 3 CFR, 2013 Comp., p. 223.
(a)
(b)
(2) The Deputy Assistant Secretary of State for Defense Trade Controls supervises the Directorate of Defense Trade Controls, which is comprised of the following offices:
(i) The Office of Defense Trade Controls Licensing and the Director, Office of Defense Trade Controls Licensing, which have responsibilities related to licensing or other approvals of defense trade, including references under this part and parts 123, 124, 125, 126, 129, and 130 of this subchapter.
(ii) The Office of Defense Trade Controls Compliance and the Director, Office of Defense Trade Controls Compliance, which have responsibilities related to violations of law or regulation and compliance therewith, including references contained in parts 122, 126, 127, 128, and 130 of this subchapter, and those portions under this part and part 129 of this subchapter pertaining to registration.
(iii) The Office of Defense Trade Controls Policy and the Director, Office of Defense Trade Controls Policy, which have responsibilities related to the general policies of defense trade, including references under this part and part 126 of this subchapter, and the commodity jurisdiction procedure under this part.
The Arms Export Control Act (22 U.S.C. 2778(a) and 2794(7)) provides that the President shall designate the articles and services deemed to be defense articles and defense services for purposes of import or export controls. The President has delegated to the Secretary of State the authority to control the export and temporary import of defense articles and services. The items designated by the Secretary of State for purposes of export and temporary import control constitute the U.S. Munitions List (USML) specified in part 121 of this subchapter. Defense articles on the USML specified in part 121 of this subchapter that are also subject to permanent import control by the Attorney General on the U.S. Munitions Import List enumerated in 27 CFR part 447 are subject to temporary import controls administered by the Secretary of State. Designations of defense articles and defense services on the USML in part 121 of this subchapter are made by the Department of State with the concurrence of the Department of Defense. The scope of the USML shall
(a) For purposes of this subchapter, a specific article or service may be designated a defense article (see § 120.31) or defense service (see § 120.32) if it:
(1) Meets the criteria of a defense article or defense service on the U.S. Munitions List (USML) (part 121 of this subchapter); or
(2) Provides the equivalent performance capabilities of a defense article on the USML.
(b) For purposes of this subchapter, a specific article or service shall be determined in the future as a defense article or defense service if it provides a critical military or intelligence advantage such that it warrants control under this subchapter.
An article or service determined in the future pursuant to this subchapter as a defense article or defense service, but not currently on the USML, will be placed in Category XXI of § 121.1 of this subchapter until the appropriate category of the USML has been amended to provide the necessary entry.
(c) A specific article or service is not a defense article or defense service for purposes of this subchapter if it:
(1) Is determined to be under the jurisdiction of another department or agency of the U.S. Government (see § 120.5) pursuant to a commodity jurisdiction determination (see § 120.4) unless superseded by changes to the USML or by a subsequent commodity jurisdiction determination; or
(2) Meets one of the criteria of § 120.41(b) when the article is used in or with a defense article and specially designed is used as a control criteria.
The intended use of the article or service after its export (
(a) The commodity jurisdiction procedure is used with the U.S. Government if doubt exists as to whether an article or service is covered by the U.S. Munitions List (USML). It may also be used for consideration of a redesignation of an article or service currently covered by the USML. The Department must provide notice to Congress at least 30 days before any item is removed from the USML.
(b) The procedure for submitting a Commodity Jurisdiction Determination Request to the Directorate of Defense Trade Controls is set forth in § 120.12.
(a)
(b)
(2)
(c)
(2) The transfer of materials, including special nuclear materials, nuclear parts of nuclear weapons, or other, non-nuclear parts of nuclear weapons systems involving Restricted Data or of assistance involving any person directly or indirectly engaging in the production or use thereof is prohibited except as authorized by the AEA. The transfer of Restricted Data or such assistance is prohibited except as authorized by the AEA. The technical data or defense services relating to nuclear weapons, nuclear weapons systems or related defense purposes (and such data or services relating to applications of atomic energy for peaceful purposes, or related research and development) may constitute Restricted Data or such assistance, subject to the foregoing prohibition.
(3) A license for the export of a defense article, technical data, or the furnishing of a defense service relating to defense articles referred to in
(i) If the proposed export involves an article which is identical to that in use in an unclassified civilian nuclear power plant;
(ii) If the proposed export has no relationship to naval nuclear propulsion; and
(iii) If it is not for use in a naval propulsion plant.
For purposes of this subchapter, the phrase
(a) Section 38 of the Arms Export Control Act (22 U.S.C. 2778);
(b) Section 1760 of the Export Control Reform Act of 2018 (50 U.S.C. 4819) or section 11 of the Export Administration Act of 1979 (50 U.S.C. 4610);
(c) Section 793, 794, or 798 of title 18, United States Code (relating to espionage involving defense or classified information) or section 2332d, 2339A, 2339B, 2339C, or 2339D of such title (relating to financial transactions with the government of a country designated as a country supporting international terrorism, providing material support to terrorists or terrorist organizations, financing of terrorism, or receiving military-type training from a foreign terrorist organization);
(d) Section 16 of the Trading with the Enemy Act (50 U.S.C. 4315);
(e) Section 206 of the International Emergency Economic Powers Act (relating to foreign assets controls; 50 U.S.C. 1705);
(f) Section 30A of the Securities Exchange Act of 1934 (15 U.S.C. 78dd-1) or section 104 of the Foreign Corrupt Practices Act (15 U.S.C. 78dd-2 or 78dd-3);
(g) Chapter 105 of title 18, United States Code (relating to sabotage);
(h) Section 4(b) of the Internal Security Act of 1950 (relating to communication of classified information; 50 U.S.C. 783(a));
(i) Sections 57, 92, 101, 104, 222, 224, 225, or 226 of the Atomic Energy Act of 1954 (42 U.S.C. 2077, 2122, 2131, 2134, 2272, 2274, 2275, and 2276);
(j) Section 601 of the National Security Act of 1947 (relating to intelligence identities protection; 50 U.S.C. 421);
(k) Section 371 of title 18, United States Code (when it involves conspiracy to violate any of the statutes listed in this section);
(l) Sections 3, 4, 5, and 6 of the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458 sections 6903-6906, relating to missile systems designed to destroy aircraft (18 U.S.C. 2332g), prohibitions governing atomic weapons (42 U.S.C. 2122), radiological dispersal services (18 U.S.C. 2332h), and variola virus (18 U.S.C. 175c);
(m) Sections 2779 and 2780 of title 22, United States Code (relating to fees of military sales agents and other payments, and transactions with countries supporting acts of international terrorism);
(n) Section 542 of title 18, United States Code (relating to the entry of goods by means of false statements), where the underlying offense involves a defense article, including technical data, or violations related to the Arms Export Control Act (AECA) or International Traffic in Arms Regulations (ITAR) in this subchapter;
(o) Section 545 of title 18, United States Code (relating to smuggling goods into the United States), where the underlying offense involves a defense article, including technical data, or violations related to the AECA or ITAR;
(p) Section 554 of title 18, United States Code (relating to smuggling goods from the United States), where the underlying offense involves a defense article, including technical data, or violations related to the AECA or ITAR; and
(q) Section 1001 of title 18, United States Code (relating to false statements or entries generally), Section 1831 of title 18, United States Code (relating to economic espionage), and Section 1832 of title 18, United States Code (relating to theft of trade secrets) where the underlying offense involves a defense article, including technical data, or violations related to the AECA or ITAR.
(a) The provisions in this subchapter are in addition to, and are not in lieu of, any other provisions of law or regulations. The sale of firearms in the United States, for example, remains subject to the provisions of the Gun Control Act of 1968 and regulations administered by the Department of Justice. The performance of defense services on behalf of foreign governments by retired military personnel continues to require consent pursuant to part 3a of this title. Persons who intend to export defense articles or furnish defense services should not assume that satisfying the requirements of this subchapter relieves one of other requirements of law.
(b) All determinations, authorizations, licenses, approvals of contracts and agreements, and other action issued, authorized, undertaken, or entered into by the Department of State pursuant to section 414 of the Mutual Security Act of 1954, as amended, or under the previous provisions of this subchapter, continue in full force and effect until or unless modified, revoked, or superseded by the Department of State.
(a)
(b)
(c)
(d)
(a)
(1) Enumerated in a category; or
(2) Described in a catch-all paragraph that incorporates specially designed as a
(b)
(2) An item described in multiple entries should be categorized according to an enumerated entry rather than a specially designed catch-all paragraph.
(c)
(d)
(a) Upon electronic submission of a Commodity Jurisdiction Determination Form (Form DS-4076), the Directorate of Defense Trade Controls (DDTC) shall provide a determination of whether a particular article or service is covered by the U.S. Munitions List in part 121 of this subchapter. The determination, consistent with §§ 120.2, 120.3, and 120.4, entails consultation among the Departments of State, Defense, Commerce, and other U.S. Government agencies and industry in appropriate cases. State, Defense, and Commerce will resolve commodity jurisdiction determination disputes in accordance with established procedures. State shall notify Defense and Commerce, and other U.S. Government agencies as appropriate, of the initiation and conclusion of each case.
(b) A determination that an article or service meets the criteria of a defense article or defense service, or provides the equivalent performance capabilities of a defense article on the U.S. Munitions List, is made on a case-by-case basis, taking into account:
(1) The form and fit of the article;
(2) The function and performance capability of the article; and
(3) Other applicant-provided information, to include a history of the product's design, development, and use, as well as specifications and any other relevant data as described in brochures and other related documents.
(c) A determination that an article or service has a critical military or intelligence advantage such that it warrants control under Category XXI of § 121.1 of this subchapter is made, on a case-by-case basis, taking into account:
(1) The function and performance capability of the article; and
(2) The nature of controls imposed by other nations on such items (including the Wassenaar Arrangement and other multilateral controls).
(d) DDTC will provide a preliminary response within 10 working days of receipt of a complete request for commodity jurisdiction determination. If after 45 days DDTC has not provided a final commodity jurisdiction determination, the applicant may request in writing to the Director, Office of Defense Trade Controls Policy that this determination be given expedited processing.
(e) A person may appeal a commodity jurisdiction determination by submitting a written request for reconsideration to the Deputy Assistant Secretary of State for Defense Trade Controls. The Deputy Assistant Secretary's determination of the appeal will be provided, in writing, within 30 days of receipt of the appeal. If desired, an appeal of the Deputy Assistant Secretary's decision can then be made to the Assistant Secretary of State for Political-Military Affairs.
(f) Registration with DDTC as described in part 122 of this subchapter is not required prior to submission of a commodity jurisdiction determination request.
(a) Any person who engages in the United States in the business of manufacturing or exporting or temporarily importing defense articles, or furnishing defense services, is required to register with the Directorate of Defense Trade Controls as set forth in part 122 of this subchapter. For the purpose of this subchapter, engaging in such a business requires only one occasion of manufacturing or exporting or temporarily importing a defense article or furnishing a defense service. A manufacturer who does not engage in exporting must nevertheless register.
(b) Any U.S. person; foreign person located in the United States; or foreign person located outside the United States that is owned or controlled by a U.S. person, who engages in brokering activities is required to register with the Directorate of Defense Trade Controls as set forth in part 129 of this subchapter.
(a)
(b)
(c)
(a) Persons otherwise required to register with the Directorate of Defense Trade Controls in accordance with this subchapter must do so prior to utilization of an exemption.
(b) Exemptions provided in this subchapter may not be utilized for transactions in which the exporter, any party to the export, any source or manufacturer, broker or other participant in the brokering activities, is generally ineligible as set forth in § 120.16, unless prior written authorization has been granted by the Directorate of Defense Trade Controls.
(c) Exemptions provided in this subchapter do not apply with respect to defense articles or defense services originating in or for export to any proscribed countries, areas, or persons identified in § 126.1 of this subchapter, except as provided in § 126.1.
(d) Each exemption provided in this subchapter is subject to limitation as described in the section or paragraph of this subchapter in which the exemption is prescribed.
(e) Any person engaging in any export, reexport, transfer, or retransfer of a defense article or defense service pursuant to an exemption must maintain records of each such export, reexport, transfer, or retransfer. The records shall, to the extent applicable to the transaction and consistent with the
(f) To claim an exemption for the export of technical data under the provisions of this subchapter (
(a) A U.S. person may receive a license or other approval pursuant to this subchapter. A foreign person may not receive such a license or other approval, except as follows:
(1) A foreign governmental entity in the U.S. may receive a license or other approval;
(2) A foreign person may receive a reexport or retransfer approval; or
(3) A foreign person may receive an approval for brokering activities.
(b) A request for a license or other approval by a U.S. person or by a person referred to in paragraphs (a)(1) and (3) of this section will be considered only if the applicant has registered with the Directorate of Defense Trade Controls pursuant to part 122 or 129 of this subchapter, as appropriate.
(c) Persons who have been convicted of violating the U.S. criminal statutes enumerated in § 120.6, who have been debarred pursuant to part 127 or 128 of this subchapter, who are subject to indictment or are otherwise charged (
(a) Pursuant to section 40A of the Arms Export Control Act (22 U.S.C. 2785) and related delegations of authority, the Department of State is required to establish a monitoring program in order to improve accountability with respect to defense articles and defense services, sold, leased, or exported under Department of State licenses or other approvals under section 38 of the Arms Export Control Act and this subchapter.
(b) All exports of defense articles, technical data, services, and brokering activities made pursuant to this subchapter are subject to end-use monitoring by the Department of State through the Blue Lantern program.
(a)
(1) The Department of State deems such action to be in furtherance of world peace, the national security or the foreign policy of the United States, or is otherwise advisable; or
(2) The Department of State believes that 22 U.S.C. 2778, any regulation contained in this subchapter, or the terms of any U.S. Government export authorization (including the terms of a manufacturing license or technical assistance agreement, or export authorization granted pursuant to the Export Administration Regulations in 15 CFR parts 730 through 774) has been violated by any party to the export or other person having significant interest in the transaction; or
(3) An applicant is the subject of a criminal complaint, other criminal charge (
(4) An applicant or any party to the export or the agreement has been convicted of violating any of the U.S. criminal statutes enumerated in § 120.6; or
(5) An applicant is ineligible to contract with, or to receive a license or other authorization to import defense articles or defense services from, any agency of the U.S. Government; or
(6) An applicant, any party to the export or agreement, any source or manufacturer of the defense article or defense service or any person who has a significant interest in the transaction has been debarred, suspended, or otherwise is ineligible to receive an export license or other authorization from any agency of the U.S. Government (
(7) An applicant has failed to include any of the information or documentation expressly required to support a license application, exemption, or other request for approval under this subchapter, or as required in the instructions in the applicable Department of State form or has failed to provide notice or information as required under this subchapter; or
(8) An applicant is subject to sanctions under other relevant U.S. laws (
(9) Any person involved in the transaction has been the subject of an unfavorable finding of an end-use monitoring check as described in § 120.17.
(b)
(c)
(d)
(a) Part 127 of this subchapter specifies conduct that constitutes a violation of the Arms Export Control Act (AECA) and/or the International Traffic in Arms Regulations in this subchapter and the sanctions that may be imposed for such violations.
(b) The Department strongly encourages the disclosure of information to the Directorate of Defense Trade Controls by persons that believe they may have violated any export control provision of the AECA, or any regulation in this subchapter, order, license, or other authorization issued under the authority of the AECA.
The Arms Export Control Act (AECA) authorizes the President to control the import and export of defense articles and services in furtherance of world peace and the security and foreign policy of the United States. Pursuant to delegated authorities, the Secretary of State is authorized to make decisions on whether license applications or other written requests for approval shall be granted, or whether exemptions may be used. The Secretary of State is also authorized to revoke, suspend, or amend licenses or other written approvals whenever such action is deemed to be advisable. The administration of the AECA is a foreign affairs function encompassed within the meaning of the military and foreign affairs exclusion of the Administrative Procedure Act and is thereby expressly exempt from various provisions of that Act. Because the exercising of the foreign affairs function, including the decisions required to implement the AECA, is highly discretionary, it is excluded from review under the Administrative Procedure Act.
(a)
(b)
(c)
(d)
(1) Furnishing information to foreign governments for law enforcement or regulatory purposes; and
(2) Furnishing information to foreign governments and other agencies of the U.S. Government in the context of multilateral or bilateral export regimes (
(a)
(b)
(c)
(a)
(b)
(2) The following countries are designated as major non-NATO allies: Afghanistan (see § 126.1(g) of this subchapter), Argentina, Australia, Bahrain, Brazil, Egypt, Israel, Japan, Jordan, Kuwait, Morocco, New Zealand, Pakistan, the Philippines, the Republic of Korea, Thailand, and Tunisia. Taiwan shall be treated as though it were designated a major non-NATO ally.
(c)
(2) The term Wassenaar Munitions List (WAML) refers to the list of military items for which all participants have agreed to maintain national export controls.
(d)
(2)
(3)
(e)
(f)
(g)
(h)
Directorate of Defense Trade Controls, Bureau of Political-Military Affairs, Department of State, Washington, DC 20522-0112.
(a)
(1) Technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated in § 121.1 of this subchapter; and
(2) Forgings, castings, and other unfinished products, such as extrusions and machined bodies, that have reached a stage in manufacturing where they are clearly identifiable by mechanical properties, material composition, geometry, or function as defense articles.
(b) It does not include basic marketing information on function or purpose or general system descriptions.
(c) The policy described in § 120.3 is applicable to designations of additional items.
(a)
(1) The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles;
(2) The furnishing to foreign persons of any technical data controlled under this subchapter, whether in the United States or abroad; or
(3) Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.
(b) [Reserved]
(a)
(1) Information, other than software as defined in § 120.40(g), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions, or documentation;
(2) Classified information relating to defense articles and defense services on the U.S. Munitions List and 600-series items controlled by the Commerce Control List;
(3) Information covered by an invention secrecy order; or
(4) Software (see § 120.40(g)) directly related to defense articles.
(b) The definition in paragraph (a) of this section does not include information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain as defined in § 120.34 or telemetry data as defined in note 3 to Category XV(f) of § 121.1 of this subchapter. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
(a)
(1) Through sales at newsstands and bookstores;
(2) Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
(3) Through second class mailing privileges granted by the U.S. Government;
(4) At libraries open to the public or from which the public can obtain documents;
(5) Through patents available at any patent office;
(6) Through unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the public, in the United States;
(7) Through public release (
(8) Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls. University research will not be considered fundamental research if:
(i) The University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity; or
(ii) The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.
(b) [Reserved]
(a)
(b) Significant military equipment includes:
(1) Items in § 121.1 of this subchapter that are preceded by an asterisk; and
(2) All classified articles enumerated in § 121.1 of this subchapter.
(a)
(b) An
(c) A
(1) A
(2) A
(d)
(e) A
(f)
(g)
(h) A
The industrial standards established by the International Council on Systems Engineering (INCOSE), National Aeronautics and Space Administration (NASA), and International Organization for Standardization (ISO) provide examples for when commodities and software operate together to perform a function as a system.
(i)
(a) Except for commodities or software described in paragraph (b) of this section, a commodity or software is specially designed if it:
(1) As a result of development, has properties peculiarly responsible for
An example of a commodity that as a result of development has properties peculiarly responsible for achieving or exceeding the controlled performance levels, functions, or characteristics in a USML category would be a swimmer delivery vehicle specially designed to dock with a submarine to provide submerged transport for swimmers or divers from submarines.
(2) Is a part, component, accessory, attachment, or software for use in or with a defense article.
(b) For purposes of this subchapter, a part, component, accessory, attachment, or software is not specially designed if it:
(1) Is subject to the EAR pursuant to a commodity jurisdiction determination;
(2) Is, regardless of form or fit, a fastener (
(3) Has the same function, performance capabilities, and the same or equivalent form and fit as a commodity or software used in or with a commodity that:
(i) Is or was in production (
(ii) Is not enumerated on the USML;
(4) Was or is being developed with knowledge that it is or would be for use in or with both defense articles enumerated on the USML and also commodities not on the USML; or
(5) Was or is being developed as a general purpose commodity or software,
For a defense article not to be specially designed on the basis of paragraph (b)(4) or (5) of this section, documents contemporaneous with its development, in their totality, must establish the elements of paragraph (b)(4) or (5). Such documents may include concept design information, marketing plans, declarations in patent applications, or contracts. Absent such documents, the commodity may not be excluded from being specially designed by either paragraph (b)(4) or (5).
For the purpose of paragraphs (b)(4) and (5) of this section, “knowledge” includes not only the positive knowledge a circumstance exists or is substantially certain to occur, but also an awareness of a high probability of its existence or future occurrence. Such awareness is inferred from evidence of the conscious disregard of facts known to a person and is also inferred from a person's willful avoidance of facts.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a)
(b)(1)
(2) Commodities in production that are subsequently subject to development activities, such as those that would result in enhancements or improvements only in the reliability or maintainability of the commodity (
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(a)
(b)
(c)
(a)
(1) An actual shipment or transmission out of the United States, including the sending or taking of a defense article out of the United States in any manner;
(2) Releasing or otherwise transferring technical data to a foreign person in the United States (a deemed export);
(3) Transferring registration, control, or ownership of any aircraft, vessel, or satellite subject to this subchapter by a U.S. person to a foreign person;
(4) Releasing or otherwise transferring a defense article to an embassy or to any of its agencies or subdivisions, such as a diplomatic mission or consulate, in the United States;
(5) Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad; or
(6) The release of previously encrypted technical data as described in § 120.56(a)(3) and (4).
(b) Any release in the United States of technical data to a foreign person is deemed to be an export to all countries in which the foreign person has held or holds citizenship or holds permanent residency.
(a)
(1) An actual shipment or transmission of a defense article from one foreign country to another foreign country, including the sending or taking of a defense article to or from such countries in any manner;
(2) Releasing or otherwise transferring technical data to a foreign person who is a citizen or permanent resident of a country other than the foreign country where the release or transfer takes place (a deemed reexport); or
(3) Transferring registration, control, or ownership of any aircraft, vessel, or satellite subject to this subchapter between foreign persons.
(b) Any release outside the United States of technical data to a foreign person is deemed to be a reexport to all countries in which the foreign person has held or holds citizenship or holds permanent residency.
(a)
(1) A change in end-use or end-user, or a temporary transfer to a third party, of a defense article within the same foreign country; or
(2) A release of technical data to a foreign person who is a citizen or permanent resident of the country where the release or transfer takes place.
(b) [Reserved]
(a)
(1) To be returned to the country from which it was shipped or taken; or
(2) Any defense article that is in transit to another foreign destination.
(b) Temporary import includes withdrawal of a defense article from a customs bonded warehouse or foreign trade zone for the purpose of returning it to the country of origin or country from which it was shipped or for shipment to another foreign destination.
(c) Permanent imports are regulated by the Attorney General under the direction of the Department of Justice's Bureau of Alcohol, Tobacco, Firearms, and Explosives (see 27 CFR parts 447, 478, 479, and 555).
(a) The following activities are not exports, reexports, retransfers, or temporary imports:
(1) Launching a spacecraft, launch vehicle, payload, or other item into space;
(2) Transmitting or otherwise transferring technical data to a U.S. person in the United States from a person in the United States;
(3) Transmitting or otherwise transferring within the same foreign country technical data between or among only U.S. persons, so long as the transmission or transfer does not result in a release to a foreign person or transfer to a person prohibited from receiving the technical data;
(4) Shipping, moving, or transferring defense articles between or among the United States as defined in § 120.60;
(5) Sending, taking, or storing technical data that is:
(i) Unclassified;
(ii) Secured using end-to-end encryption;
(iii) Secured using cryptographic modules (hardware or software) compliant with the Federal Information Processing Standards Publication 140-2 (FIPS 140-2) or its successors, supplemented by software implementation, cryptographic key management and other procedures and controls that are in accordance with guidance provided in current U.S. National Institute for Standards and Technology (NIST) publications, or by other cryptographic means that provide security strength that is at least comparable to the minimum 128 bits of security strength achieved by the Advanced Encryption Standard (AES-128); and
(iv) Not intentionally sent to a person in or stored in a country proscribed in § 126.1 of this subchapter or the Russian Federation; and
Data in-transit via the internet is not deemed to be stored.
(v) Not sent from a country proscribed in § 126.1 of this subchapter or the Russian Federation.
(b)(1) For purposes of this section, end-to-end encryption is defined as:
(i) The provision of cryptographic protection of data, such that the data is not in an unencrypted form, between an originator (or the originator's in-country security boundary) and an intended recipient (or the recipient's in-country security boundary); and
(ii) The means of decryption are not provided to any third party.
(2) The originator and the intended recipient may be the same person. The intended recipient must be the originator, a U.S. person in the United States, or a person otherwise authorized to receive the technical data, such as by a license or other approval pursuant to this subchapter.
(c) The ability to access technical data in encrypted form that satisfies the criteria set forth in paragraph (a)(5) of this section does not constitute the release or export of such technical data.
(a)
(1) Visual or other inspection by foreign persons of a defense article that reveals technical data to a foreign person;
(2) Oral or written exchanges with foreign persons of technical data in the United States or abroad;
(3) The use of access information to cause or enable a foreign person, including yourself, to access, view, or possess unencrypted technical data; or
(4) The use of access information to cause technical data outside of the United States to be in unencrypted form.
(b)
(a)
(b)
(c)
(d)
(1) The export of technical data or defense articles or the performance of a defense service; or
(2) The use by the foreign person of technical data or defense articles previously exported by the U.S. person.
(e)
(f)
Items
(a)
(1) An individual permanently and directly employed by the company; or
(2) An individual in a long term contractual relationship with the company where the individual works at the company's facilities, works under the company's direction and control, works full time and exclusively for the company, and executes nondisclosure certifications for the company, and where the staffing agency that has seconded the individual has no role in the work the individual performs (other than providing that individual for that work) and the staffing agency would not have access to any controlled technology (other than where specifically authorized by a license).
(b) [Reserved]
(a)
(b)
(a)
(b) For purposes of this section, “control” means having the authority or ability to establish or direct the general policies or day-to-day operations of the firm. Control is rebuttably presumed to exist where there is ownership of 25 percent or more of the outstanding voting securities if no other person controls an equal or larger percentage.
(a)
(1) Is directly employed by the applicant or a subsidiary in a position having authority for policy or management within the applicant organization; and
(2) Is legally empowered in writing by the applicant to sign license applications or other requests for approval on behalf of the applicant; and
(3) Understands the provisions and requirements of the various export control statutes and regulations, and the criminal liability, civil liability, and administrative penalties for violating the Arms Export Control Act and the International Traffic in Arms Regulations in this subchapter; and
(4) Has the independent authority to:
(i) Inquire into any aspect of a proposed export, temporary import, or brokering activity by the applicant;
(ii) Verify the legality of the transaction and the accuracy of the information to be submitted; and
(iii) Refuse to sign any license application or other request for approval without prejudice or other adverse recourse.
(b) For the purposes of a broker who is a foreign person, the empowered official may be a foreign person who otherwise meets the criteria for an empowered official in paragraph (a) of this section.
(a)
(1) The chief executive officer, president, vice-presidents, other senior officers and officials (
(2) The freight forwarders or designated exporting agent of the applicant; and
(3) Any consignee or end-user of any item to be exported.
(b) [Reserved]
22 U.S.C. 2752, 2778, 2797; 22 U.S.C. 2651a; Sec. 1514, Pub. L. 105-261, 112 Stat. 2175; E.O. 13637, 78 FR 16129, 3 CFR, 2013 Comp., p. 223.
(a) For a description of the U.S. Munitions List and its designations, including the use of asterisks and the parenthetical “(MT)”, see § 120.10 of this subchapter.
(b) As used in this part,
Sections 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778); 22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.
Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2753; 22 U.S.C. 2651a; 22 U.S.C. 2776; Pub. L. 105-261, 112 Stat. 1920; Sec. 1205(a), Pub. L. 107-228; Sec. 520, Pub. L. 112-55; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.
Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; 22 U.S.C. 2776; Section 1514, Pub. L. 105-261; Pub. L. 111-266; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.
The revision reads as follows:
(c) * * *
(4) Supporting technical data must be unclassified and must not include software documentation on the design or details of the computer software, software source code, design methodology, engineering analysis, or manufacturing know-how.
(b) The technical data of U.S.-origin to be used in the foreign manufacture of defense articles does not exceed that required for bid purposes on a build-to-print basis; and
Secs. 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778); 22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.
The revision reads as follows:
(c) Defense services and related unclassified technical data are exempt from the licensing requirements of this subchapter, to nationals of NATO countries, Australia, Japan, and Sweden, for the purposes of responding to a written request from the Department of Defense for a quote or bid proposal. Such exports must be pursuant to an official written request or directive from an authorized official of the U.S. Department of Defense. The defense services and technical data are limited to paragraphs (f), (g), and (h) (build-to-print, build/design-to-specification, and basic research, respectively) of § 120.43 of this subchapter and must not include paragraph (c), (d), (e), or (i) (design methodology, engineering analysis, manufacturing know-how, and applied research, respectively) of § 120.43.
22 U.S.C. 2752, 2778, 2780, 2791, and 2797; 22 U.S.C. 2651a; 22 U.S.C. 287c; Sec. 1225, Pub. L. 108-375; Sec. 7089, Pub. L. 111-117; Pub. L. 111-266; Sections 7045 and 7046, Pub. L. 112-74; E.O. 13637, 78 FR 16129.
The revision reads as follows:
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.
Sections. 2, 38, 40, 42, and 71, Arms Export Control Act. 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and 2797); 22 U.S.C. 2651a; E.O. 12291, 46 FR 1981; E.O. 13637, 78 FR 16129.
The Arms Export Control Act (AECA) authorizes the President to control the import and export of defense articles and services in furtherance of world peace and the security and foreign policy of the United States. Pursuant to delegated authorities, the Secretary of State is authorized to make decisions on whether license applications or other written requests for approval shall be granted, or whether exemptions may be used. The Secretary of State is also authorized to revoke, suspend, or amend licenses or other written approvals whenever such action is deemed to be advisable. The administration of the AECA is a foreign affairs function encompassed within the meaning of the military and foreign affairs exclusion of the Administrative Procedure Act and is thereby expressly exempt from various provisions of that Act. Because the exercising of the foreign affairs function, including the decisions required to implement the AECA, is highly discretionary, it is excluded from review under the Administrative Procedure Act.
The Administrative Law Judge referred to in this part is an Administrative Law Judge appointed by the Department of State. The Administrative Law Judge is authorized to exercise the powers and perform the duties provided for in §§ 128.3 through 128.16.
Section 38, Pub. L. 104-164, 110 Stat. 1437, (22 U.S.C. 2778); E.O. 13637, 78 FR 16129.
Sec. 39, Pub. L. 94-329, 90 Stat. 767 (22 U.S.C. 2779); 22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.
Occupational Safety and Health Administration (OSHA), Labor.
Notice of limited reopening of comment period; notice of informal hearing.
OSHA is partially reopening the comment period to allow for additional public comment on specific topics and is scheduling an informal public hearing on its interim final rule establishing an Emergency Temporary Standard (ETS), “Occupational Exposure to COVID-19.” The public hearing will begin on April 27, 2022.
On June 21, 2021, OSHA published an ETS to protect healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present (86 FR 32376). Although the ETS took effect immediately, OSHA also requested comment on whether it should become permanent, as well as on all other aspects of the ETS. OSHA received 481 comments concerning the ETS during the comment period, which was to end on July 21, 2021, but was extended to August 20, 2021, in response to requests from the public (86 FR 38232). To read or download comments and other materials submitted in the docket, go to Docket No. OSHA-2020-0004 at
OSHA is seeking public comment on certain specific topics and questions for the development of a final standard. Accordingly, the agency is partially reopening the comment period for the ETS to allow for additional comment on the topics identified below. OSHA encourages commenters to explain why they prefer or disfavor particular policy choices, and include any relevant studies, experiences, anecdotes, or other information that may help support the comment. OSHA seeks comments on the following topics:
The following is a list of potential rulemaking outcomes that would depart from the provisions of the ETS such that OSHA has decided to provide this additional notice and an opportunity to comment. OSHA has not made any decisions about these potential provisions or approaches, nor is this intended to list all of the potential changes from the ETS. Other changes may result after due consideration of all comments and hearing testimony.
○ The Healthcare ETS included a provision requiring employers to inform employees about the safety, efficacy, and benefits of vaccination and provide reasonable time and paid leave to each employee for vaccination and side effects experienced following vaccination. OSHA is considering an adjustment to the requirement that would include paid time up to 4 hours, including travel time, for employees to receive a vaccine and paid sick leave to recover from side effects and seeks comment on the approach.
○ OSHA is considering requiring employer support for employees who wish to stay up to date on vaccination and boosters in accordance with ACIP and CDC recommendations. OSHA seeks comment on the approach.
○ OSHA is considering whether to limit the provisions that provide support for vaccination to employees not covered by the Centers for Medicare & Medicaid Services (CMS) vaccination rule (86 FR 61555) and seeks comment on this approach. The CMS vaccination rule requires healthcare staff in facilities regulated by CMS to be vaccinated. The majority of healthcare employees covered by this final rule work in facilities covered by the CMS vaccination rule and are subject to the CMS requirements.
OSHA seeks comment on these approaches.
OSHA recognizes that the majority of the comment period occurred prior to when the Delta and Omicron variants became prevalent in the United States. OSHA requests new studies or data related to the Delta and Omicron variants since the close of the initial comment period in August 2021, particularly with respect to:
Additionally, OSHA requests data and information on:
OSHA also seeks information and data on cases, illnesses, hospitalizations, and fatalities that are specific to employees that would be subject to the final rule (
OSHA is considering using all sources of data on which it relied in the Healthcare ETS and the Vaccination and Testing ETS, as well some new data sources it did not rely on, including, for example:
• CDC Daily Tracker: Daily Tracker Home,
• Demographic Trends of COVID-19 cases and deaths in the US reported to CDC,
Maps, charts, and data provided by CDC:
• Rates of COVID-19 Cases and Deaths by Vaccination Status,
• Rates of laboratory-confirmed COVID-19 hospitalizations by vaccination status,
• United States COVID-19 Cases, Deaths, and Laboratory Testing (NAATs) by State, Territory, and Jurisdiction,
• Nationwide COVID-19 Infection-Induced Antibody Seroprevalence,
• Kaiser Health News/UK Guardian,
• US Census: Current Population Statistics,
• The National Panel Study of COVID-19 (NPSC19),
• Census Bureau Household Pulse Survey,
• National Center for Health Statistics,
• American Community Survey,
• Optum Clinformatics Data Mart.
One commenter requested that OSHA hold a public hearing on the
Pursuant to 29 CFR 1911.15(a) and 5 U.S.C. 553(c), members of the public have an opportunity at the informal public hearing to provide oral testimony and evidence on issues raised by the proposal. An administrative law judge (ALJ) presides over each OSHA hearing and will resolve any procedural matters relating to the hearing.
OSHA's regulation governing public hearings (29 CFR 1911.15) establishes the purpose and procedures of informal public hearings. Although the presiding officer of the hearing is an ALJ and questioning of witnesses may be allowed on crucial issues, the proceeding is largely informal and essentially legislative in purpose. Therefore, the hearing provides interested persons with an opportunity to make oral presentations in the absence of rigid procedures that could impede or protract the rulemaking process. The hearing is not an adjudicative proceeding subject to the Federal Rules of Evidence. Instead, it is an informal administrative proceeding convened for the purpose of gathering and clarifying information. Accordingly, questions of relevance, procedure, and participation generally will be resolved in favor of developing a clear, accurate, and complete record within the available time frame.
The available time frame for this rulemaking is short as the agency hopes to complete the rulemaking as quickly as possible. OSHA remains aware of the dangers to healthcare workers exposed to COVID-19, as well as the potential for new variants and the surges of patients with COVID-19 that could follow in healthcare. Pursuant to 29 CFR 1911.4, the Assistant Secretary may, on reasonable notice, issue additional or alternative procedures to expedite the proceedings.
Although the ALJ presiding over the hearing makes no decision or recommendation on the merits of the proposal, the ALJ has the responsibility and authority necessary to ensure that the hearing progresses at a reasonable pace and in an orderly manner. To ensure a full and fair hearing, the ALJ has the power to regulate the course of the proceedings; dispose of procedural requests, objections, and comparable matters; confine presentations to matters pertinent to the issues the proposed rule raises; use appropriate means to regulate the conduct of persons present at the hearing; question witnesses and permit others to do so; limit such questioning; and leave the record open for a reasonable time after the hearing for the submission of additional data, evidence, comments, and arguments from those who participated in the hearing (29 CFR 1911.16).
At the close of the hearing, there will be a post-hearing comment period during which stakeholders may submit final briefs, arguments, summations, and additional data and information to OSHA.
Interested persons who intend to provide oral testimony or documentary evidence at the hearing must file a written NOITA prior to the hearing and in accordance with the instructions in the
(1) Name, address, email address, and telephone number of each individual who will give oral testimony;
(2) Name of the establishment or organization each individual represents, if any;
(3) Occupational title and position of each individual testifying; and
(4) A brief statement of the position each individual will take with respect to the issues raised by the ETS (
The agency will consider the information in each submission when setting the hearing schedule. Before the hearing, OSHA will make the hearing procedures and hearing schedule available at
Following the close of the hearing and the post-hearing comment period, the ALJ will certify the record to the Assistant Secretary of Labor for Occupational Safety and Health. The record will consist of all of the written comments, oral testimony, and documentary evidence received during the proceeding. The ALJ, however, will not make or recommend any decisions as to the content of the final standard. Following certification of the record, OSHA will review all the evidence received into the record and will issue the final rule based on the record as a whole.
This document was prepared under the direction of Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210. It is issued under the authority of sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 8-2020 (85 FR 58393 (Sept. 18, 2020)); 29 CFR part 1911; and 5 U.S.C. 553.
Coast Guard, DHS.
Notification of enforcement of regulation.
The Coast Guard will enforce a temporary safety zone for a fireworks display located on the navigable waters of the Lower Mississippi River between Mile Marker (MM) 94.5 to 95.5. This action is needed to provide for the safety of life on these navigable waterways during the event. During the enforcement periods, the operator of any vessel in the regulated area must comply with directions from the Captain of the Port or designated representative.
The regulations in 33 CFR 165.845 will be enforced from 9:30 p.m. to 11 p.m. on April 3, 2022.
If you have questions about this notification of enforcement, call or email Lieutenant Commander William Stewart, Sector New Orleans, U.S. Coast Guard; telephone 504-365-2246, email
The Coast Guard will enforce safety zone located
In addition to this notification of enforcement in the
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Alexander Schleicher GmbH & Co. Segelflugzeugbau Model ASW-15 gliders. This proposed AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI identifies the unsafe condition as wing root damage. This proposed AD would require repetitively inspecting the wing root ribs for cracks, looseness, and damage and replacing any root rib with a crack, a loose rib or lift pin bushing, or any damage. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by May 9, 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 Alexander Schleicher GmbH & Co. Segelflugzeugbau, Alexander-Schleicher-Str. 1, Poppenhausen, Germany D-36163; phone: +49 (0) 06658 89-0; email:
You may examine the AD docket at
Jim Rutherford, Aviation Safety Engineer, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 901 Locust, Room 301, Kansas City, MO 64106; phone: (816) 329-4165; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Jim Rutherford, Aviation Safety Engineer, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 901 Locust, Room 301, Kansas City, MO 64106. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.
The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0187, dated August 9, 2021 (referred to after this as “the MCAI”), to address an unsafe condition on certain Alexander Schleicher GmbH & Co. Segelflugzeugbau Model ASW 15 gliders. The MCAI states:
Occurrences were reported of finding wing root rib damage. Investigation is ongoing to determine the root cause of the damage.
This condition, if not detected and corrected, could reduce the structural integrity of the wing assembly of the sailplane.
To address this potential unsafe condition, Schleicher issued the TN [technical note] to provide inspection instructions.
For the reasons described above, this [EASA] AD requires repetitive inspections of each affected part and, depending on findings, replacement. This [EASA] AD also introduces restrictions for installation of an affected part.
You may examine the MCAI in the AD docket at
The FAA reviewed Alexander Schleicher GmbH & Co. Segelflugzeugbau ASW 15 Technical Note No. 29, dated June 28, 2021. This service information specifies inspecting the root ribs at the wings.
The FAA also reviewed Alexander Schleicher GmbH & Co. Segelflugzeugbau ASW 15 Repair instruction exchange of wing root ribs according to TN 29, dated June 28, 2021. This service information specifies procedures for replacing the root ribs.
In addition, the FAA reviewed Alexander Schleicher GmbH & Co. Segelflugzeugbau ASW 15 Maintenance Instruction G, Issue 1, dated June 28, 2021. This service information specifies procedures for inspecting the root ribs at the wings for damage.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information already described.
The FAA estimates that this AD, if adopted as proposed, would affect 20 gliders of U.S. registry.
The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. The agency has no way of determining the number of gliders that might need these replacements:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by May 9, 2022.
None.
This AD applies to Alexander Schleicher GmbH & Co. Segelflugzeugbau Model ASW-15 gliders, all serial numbers, certificated in any category.
Joint Aircraft System Component (JASC) Code 5712, Wing, Rib/Bulkhead.
This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as wing root rib damage. The FAA is issuing this AD to detect and correct damaged root ribs. The unsafe condition, if not addressed, could result in reduced structural integrity of the wing assembly, which could lead to loss of control of the glider.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 30 days after the effective date of this AD and thereafter at intervals not to exceed 12 months, inspect all wing root ribs (4 places) for cracks, looseness, and damage in accordance with the Action section in Alexander Schleicher GmbH & Co. Segelflugzeugbau ASW 15 Maintenance Instruction G, Issue 1, dated June 28, 2021. If there is a crack in any root rib, a loose rib or lift pin bushing, or any damage, before further flight, replace the root rib in accordance with Action paragraph (B) in Alexander Schleicher GmbH & Co. Segelflugzeugbau ASW 15 Technical Note No. 29, dated June 28, 2021, and steps 1 through 7 in Alexander Schleicher GmbH & Co. Segelflugzeugbau ASW 15 Repair instruction exchange of wing root ribs according to TN 29, dated June 28, 2021.
(2) Replacing all four wing root ribs is terminating action for the repetitive inspections required by this AD.
(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 certification office, send it to the attention of the person identified in paragraph (i)(1) of this AD and email 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 Jim Rutherford, Aviation Safety Engineer, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 901 Locust, Room 301, Kansas City, MO 64106; phone: (816) 329-4165; email:
(2) Refer to MCAI European Union Aviation Safety Agency (EASA) AD 2021-0187, dated August 9, 2021, for related information. You may examine the EASA AD in the AD docket at
(3) For service information identified in this AD, contact Alexander Schleicher GmbH & Co. Segelflugzeugbau, Alexander-Schleicher-Str. 1, Poppenhausen, Germany D-36163
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class D airspace at Chicago/Romeoville, IL. The FAA is proposing this action to support the establishment of an air traffic control tower at Lewis University Airport, Chicago/Romeoville, IL.
Comments must be received on or before May 9, 2022.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2022-0167/Airspace Docket No. 22-AGL-14 at the beginning of your comments. You may also submit comments through the internet at
FAA Order JO 7400.11F, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class D airspace at Lewis University Airport, Chicago/Romeoville, IL, to support instrument flight rule operations at this airport.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the
The FAA is proposing an amendment to 14 CFR part 71 by establishing Class D airspace within a 4.1-mile radius of Lewis University Airport, Chicago/Romeoville, IL, extending from the surface up to and including 3,200 feet MSL.
This action supports the establishment of an air traffic control tower at Lewis University Airport.
Class D airspace designations are published in paragraph 5000 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 3,200 feet MSL within a 4.1-mile radius of Lewis University Airport. This Class D airspace area is effective during specific dates and times established in advance by a Notice to Airmen. The effective dates and times will thereafter be continuously published in the Chart Supplement.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend the Class E airspace at Kansas City, MO. The FAA is proposing this action as the result of a biennial airspace review.
Comments must be received on or before May 9, 2022.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2022-0140/Airspace Docket No. 22-ACE-6 at the beginning of your comments. You may also submit comments through the internet at
FAA Order JO 7400.11F, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E airspace extending upward from 700 feet above the surface at Kansas City International Airport, Kansas City, MO, to support instrument flight rule operations at this airport.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2022-0140/Airspace Docket No. 22-ACE-6.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the
The FAA is proposing an amendment to 14 CFR part 71 by amending the Class E airspace extending upward from 700 feet above the surface within an 8.5-mile (increased from a 7.6-mile) radius of Kansas City International Airport, Kansas City, MO.
This action is necessary due to a biennial airspace review.
Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 8.5-mile radius of Kansas City International Airport; and within a 6.7-mile radius of Charles B. Wheeler Downtown Airport; and within 2 miles each side of the 215° bearing from the Charles B. Wheeler Downtown: RWY 03-LOC, extending from the 6.7-mile radius to 8.7 miles south of Charles B. Wheeler Downtown Airport; and within a 6.5-mile radius of Sherman AAF.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace extending upward from 700 feet above the surface at Stephen A. Bean Municipal Airport, Rangeley, ME, due to the decommissioning of the Rangeley non-directional beacon (NDB) and cancellation of associated approaches, as well as updating the airport's name and geographic coordinates. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.
Comments must be received on or before May 9, 2022.
Send comments on this proposal to: the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590-0001; Telephone: (800) 647-5527, or (202) 366-9826. You must identify the Docket No. FAA-2022-0229; Airspace Docket No. 22-ANE-2 at the beginning of your comments. You may also submit comments through the internet at
FAA Order JO 7400.11F, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Avenue, College Park, GA 30337; Telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would amend airspace in Rangeley, ME, to support IFR operations in the area.
Interested persons are invited to comment on this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (Docket No. FAA-2021-0229 and Airspace Docket No. 22-ANE-2) and be submitted in triplicate to DOT Docket Operations (see
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2021-0229; Airspace Docket No. 22-ANE-2.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this document may be changed in light of the comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective
The FAA proposes an amendment to 14 CFR part 71 to amend Class E airspace extending upward from 700 feet above the surface at Stephen A. Bean Municipal Airport, Rangeley, ME, due to the decommissioning of the Rangeley NDB and cancellation of associated approaches. This action would increase the radius to 6.5 miles (previously 6.3 miles), and eliminate the southwest extension. This action would also update the airport's name to Stephen A. Bean Municipal Airport (formerly Rangeley Municipal Airport), and update the airport's geographic coordinates to coincide with the FAA's database.
Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures”, prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Stephen A. Bean Municipal Airport.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve state implementation plan (SIP) revisions submitted by the State of Colorado on May 13, 2020. The revisions contain amendments to the State's New Source Review (NSR) permitting program and Air Pollution Emission Notices (APENs). The EPA is taking this action pursuant to the Clean Air Act (CAA).
Written comments must be received on or before April 22, 2022.
Submit your comments, identified by Docket ID No. EPA-R08-OAR-2022-0103, to the Federal Rulemaking Portal:
Kevin Leone, Air and Radiation Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, Colorado, 80202-1129, telephone number: (303) 312-6227, email address:
Throughout this document wherever
On May 13, 2020, the State of Colorado adopted and repealed revisions to Regulation Number 3 (Stationary Source Permitting and Air Pollution Emission Notice Requirements) Part A (Concerning General Provisions Applicable to Reporting and Permitting), Part B (Concerning Construction Permits) and Part C (Concerning Operating Permits.) The revisions we are acting on are in Colorado's minor source permitting program. The EPA is proposing to approve all of the revisions submitted on May 13, 2020, with the exception of the revision to Part A, Section II.A.2.a, which was not extended by the Colorado General Assembly and expired effective May 15, 2021. As a result, this section is no longer in Regulation Number 3. We received a letter from Colorado requesting to withdraw this provision from the May 13, 2020 submittal on October 15, 2021 (See docket.) along with revisions to Appendix B (Non-Criteria Reportable Pollutants), as they are not part of the SIP. We will also not be acting on the revisions to Regulation Number 7, as they were acted on in a separate action on November 5, 2021 (86 FR 61071).
The May 13, 2020 submittal contains the following revisions to Regulation 3, Parts A, B and C:
1. Revises existing definitions and adds an existing definition used in Regulation Number 7 (Control of Ozone via Ozone Precursors and Hydrocarbons via Oil and Gas Emissions);
2. Updates the APEN reporting and permitting requirements for oil and gas well production facilities;
3. Clarifies and narrows certain exemptions and repeal certain exemptions related to oil and gas wastewater impoundments;
4. Revises the SIP to more closely align language with Colorado Statutes;
5. Clarifies when transfer of ownership forms are due and where the compliance responsibilities lie during the transfer process; and
6. Corrects typographical, grammatical and formatting errors found throughout the regulations.
The definition of “Well Production Facility” is added. This is approvable, as the definition already exists in Regulation Number 7, I.B.30. This definition was added to Regulation Number 3 to promote consistency throughout the State's permitting regulations. This definition was previously referred to as the undefined term “exploration and production.” This revision meets the statutory and regulatory requirements as outlined in Section III. below of this proposed rulemaking.
The definition of “Commencement of Operation” is revised. This revision is approvable. The definition reflects that when permanent equipment is on-site and operating, commencement of operation has occurred, even if there is temporary equipment on-site. For example, if a well is producing into one temporary tank and two permanent storage tanks, the storage tanks have commenced operation for purposes of Regulation Number 3. The revision separates the requirement from any specific stage of well operation. The revised definition clarifies that commencement of operation is not always determined by the transition of well completion operations into startup of production as those terms are defined in 40 CFR 60.5430a (subpart OOOOa). However, to ensure that an operator cannot continue to produce into temporary tanks indefinitely and thus avoid APEN reporting and permitting requirements, this revision clarifies that the end of the flowback is the latest date at which commencement of operation may occur.
This revision also ensures consistency across Colorado's State air regulations, as the revised definition of “commencement of operation” in Regulation Number 3 is the same as the federally approved definition of “commencement of operation” in Regulation Number 7, Part D, I.D.7.
This paragraph adds the phrase “provided in Section II.A.2 below, or as” to reflect the addition of new paragraph II.A.2. Colorado has withdrawn Section II.A.2 and, as a result, we are not taking action on this revision.
As mentioned in Section I. of this action, the addition of this paragraph has been withdrawn by the State of Colorado, thus, this revision will not be acted on. As a result, owners or operators of well production facilities must submit APENs prior to the construction, modification, or alteration of the facility, as specified for all other sources in Section II.A.1, which requires that facilities cannot emit air pollutants from a stationary source unless an APEN and associated fees have been filed with the Division.
In other words, owners and operators of well production facilities must apply for an APEN prior to commencement of operation. APENs require owners or operators to specify the location at which the proposed emission source will occur, the name and address of the persons operating and owning such a facility, the nature of the facility, process or activity, an estimate of the quantity and composition of the expected emissions, among other requirements. Thus, this revision meets the statutory and regulatory requirements as outlined in Section III. of this proposed rulemaking.
This paragraph requires owners or operators of well production facilities to file an APEN prior to the modification of well production facilities. This is a similar requirement as stated in II.A.1. This revision meets the statutory and regulatory requirements as outlined in Section III of this proposed rulemaking.
This exemption was repealed to reflect the withdrawal of Part A Section II.A.2.a. Section II.D.1.III. provides that the owner or operator of an oil and gas exploration and production operation shall file an APEN with the Division thirty days after well completion. If production will result in reportable emissions, the owner or operator shall file an APEN within thirty days after the report of first production is filed with the State, but no later than ninety days. As a result of this section being repealed, owners or operators are now required to file an APEN prior to commencement of operations, as required in Part A, Section II.A.1.
In Section II.A.1, the phrase “commence construction of” is replaced with the phrase “construct, modify or operate” and the phrase “modification of a stationary source” is replaced by the phrase “commence the conduct of and such activity.” Similar language changes were made in Section III.I.2.a.
These language revisions align with the existing language in the Air Pollution Prevention and Control Act
Colorado revised Section II.B. to clarify that a transfer of ownership form is due to the State within 30 days of the completion of a transfer or assignment of ownership for re-issuing of existing permits. The current language indicates that a “prospective” owner must submit the transfer of ownership form, indicating that the form must be submitted prior to acquisition. The revised language provides clarity for sources about this requirement. The language has also been modified to state that the requirements for compliance with existing permitting requirements transfer to the new owner or operator when the forms are submitted.
Section II.D.7 was repealed to reflect the removal of Part A Section II.A.2.a. Section II.D.7 provides that oil and gas exploration and production operations that are required to obtain a construction permit are not required to file an application for a construction permit until they are required to file an APEN. This section was not extended by the Colorado General Assembly and expired effective May 15, 2021; thus, it is no longer in Regulation Number 3. As a result, all well production facilities must file for a construction permit prior to commencement of operation, as stated in Part A, Section II.A.1.
The phrase “or alternate forms required by the division” was added to this section to give owners or operators additional application form options, as described in Regulation 3, Part A.III.H.1.—General Construction Permits.
The term “commence construction” was replaced with the term “construct, operate.” This revision clarifies that an owner or operator cannot operate a new or modified source until a general construction permit is received.
(1) Part A, Section II.D.1.zzz and Part C, Section II.E.dddd contain exemptions from filing an APEN and operating permit for venting of natural gas lines for safety purposes. The revisions add that this exemption does not apply to “routine or predictable emissions at or associated with a stationary source.”
(2) The exemptions in Part A, Section II.D.1.uuu, Part B, Section II.D.1.m, Part C, Section II.E.3.uu and II.E.3.yyy are being revised to no longer exempt oil and gas production wastewater impoundments that contain less than 1 percent by volume crude oil on an annual average from APEN and reporting requirements.
Based on the above discussion, the EPA finds that the repealed and revised sections of Colorado's air permitting regulations outlined in Section II., as submitted by the State of Colorado on May 13, 2020, will not interfere with attainment or maintenance of any national ambient air quality standard (NAAQS) in the State and would not interfere with any other applicable requirement of the CAA. Thus, we are proposing to approve all SIP revisions in this proposed rulemaking, as the revisions to Parts A, B and C corresponding to APEN, construction permitting and operating permitting requirements do not exceed or differ from the requirements of the CAA or Federal regulations; in particular, as outlined below:
(1) The statutory requirements under CAA section 110(a)(2)(c), which requires states to include a minor NSR program in their SIP to regulate modifications and new construction of stationary sources within the area as necessary to assure the NAAQS are achieved;
(2) The regulatory requirements under 40 CFR 51.160, including § 51.160(a), which require that the SIP include legally enforceable procedures that enable a state or local agency to determine whether construction or modification of a facility, building, structure or installation, or a combination of these will result in a violation of applicable portions of the control strategy; or interference with attainment or maintenance of a national standard in the state in which the proposed source (or modification) is located or in a neighboring state; § 51.160(b), which requires states to have legally enforceable procedures to prevent construction or modification of a source if it would violate any SIP control strategies or interfere with attainment or maintenance of the NAAQS; and
(3) The statutory requirements under CAA section 110(l), which provides that EPA cannot approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP), or any other applicable requirement of the CAA. Therefore, EPA will approve a SIP revision only after a state has demonstrated that such a revision will not interfere (“noninterference”) with attainment of the NAAQS, RFP or any other applicable requirement of the CAA.
EPA has determined that these revisions are approvable under CAA 110(a)(2)(C), 40 CFR 51.160-164 and CAA section 110(l). Therefore, we are proposing to approve the revisions as submitted by the State of Colorado on May 13, 2020.
In this document, the EPA is proposing to include regulatory text in an EPA final rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the revisions described in Section II. of this preamble. The EPA has made, and will continue to make, these materials generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Carbon monoxide, Greenhouse gases, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to reclassify the northern long-eared bat (
We will accept comments received or postmarked on or before May 23, 2022. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Shauna Marquardt, Field Supervisor, U.S. Fish and Wildlife Service, Minnesota Wisconsin Ecological Services Field Office, 4101 American Boulevard East, Bloomington, MN 55425; telephone 952-252-0092. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat, or both.
(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.
(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that the species should remain listed as a threatened species instead of reclassified as an endangered species, or we may conclude that the species does not warrant listing as either an endangered species or a threatened species.
Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. For the immediate future, we will provide these public hearings using webinars that will be announced on the Service's website, in addition to the
On October 2, 2013, we proposed to list the northern long-eared bat as an endangered species under the Act (78 FR 61046); please refer to that proposed rule for a detailed description of previous Federal actions concerning this species.
On January 16, 2015, we proposed to create a 4(d) rule to provide measures that are necessary and advisable to provide for the conservation of the northern long-eared bat should we determine the species warrants listing as a threatened species under the Act (80 FR 2371). That document also reopened the public comment period on the October 2, 2013, proposed rule for another 60 days, ending on March 17, 2015.
On April 2, 2015, we finalized a rule listing the northern long-eared bat as a threatened species and established an interim 4(d) rule for the species (80 FR 17974). We solicited public comment on the interim 4(d) rule for 90 days, ending on July 1, 2015. On January 14, 2016, we finalized the 4(d) rule for the northern long-eared bat (81 FR 1900). On April 27, 2016, we published a not-prudent determination for critical habitat (81 FR 24707).
A January 28, 2020, court order requires the Service to make a new listing decision for the northern long-eared bat (
A species status assessment (SSA) team prepared an SSA report for the northern long-eared bat (Service 2021, entire). The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. In accordance with our joint policy on peer review published in the
A thorough review of the taxonomy, life history, and ecology of the northern long-eared bat is presented in the SSA report (Service 2021, entire).
The northern long-eared bat is a wide-ranging bat species found in 37 States (Alabama, Arkansas, Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming), the District of Columbia, and 8 Canadian provinces. The species typically overwinters in caves or mines and spends the remainder of the year in forested habitats. As its name suggests, the northern long-eared bat is distinguished by its long ears, particularly as compared to other bats in its genus,
The individual, population-level, and species-level needs of the northern long-eared bat are summarized below in tables 1-3. For additional information, please see the SSA report (Service 2021, chapter 2).
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an endangered species or a threatened species. The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.
We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.
However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.
The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.
The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the northern long-eared bat, including an assessment of the potential threats to the species. The SSA report does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS-R3-ES-2021-0140 on
To assess the northern long-eared bat's viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry or warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.
In this discussion, we review the biological condition of the northern long-eared bat and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability. For a full description, see the SSA report (Service 2021, entire).
Although there are other stressors affecting the northern long-eared bat, the primary factor influencing its viability is white-nose syndrome (WNS), a disease of bats caused by a fungal pathogen. Some of the other factors that influence the northern long-eared bat's viability (though to a far lesser extent than the influence of WNS) include wind energy mortality, effects from climate change, and habitat loss. These stressors and their effects to the northern long-eared bat are summarized below:
• WNS has been the foremost stressor on the northern long-eared bat for more than a decade. The fungus that causes the disease,
• Wind energy-related mortality of the northern long-eared bat is a stressor at local and regional levels, where northern long-eared bat populations have been impacted by WNS. In 2020, northern long-eared bats were at risk from wind mortality in approximately 49 percent of their range, based on the areas where wind turbines were in place and operating (using known northern long-eared bat occurrences, average migration distance, and the spatial distribution of wind turbines) (Service 2021, p. iv). Most bat mortality at wind energy projects is caused by direct collisions with moving turbine blades.
• Climate change variables, such as changes in temperature and precipitation, may influence the northern long-eared bat's resource needs, such as suitable roosting habitat for all seasons, foraging habitat, and prey availability. Although a changing climate may provide some benefit to the northern long-eared bat, overall negative impacts are anticipated, especially at local levels.
• Habitat loss (including but not limited to forest conversion or hibernacula disturbance or destruction) may include loss of suitable roosting or foraging habitat, resulting in longer flights between suitable roosting and foraging habitats due to habitat fragmentation, fragmentation of maternity colony networks, and direct injury or mortality. Loss or modification of winter roosts (
In evaluating current conditions of the northern long-eared bat, we used the best available data. Winter hibernacula counts provide the most consistent, long-term, reliable trend data and provide the most direct measure of WNS impacts. We also used summer data in evaluating population trends, although the availability and quality of summer data varies temporally and spatially.
Available evidence, including both winter and summer data, indicates northern long-eared bat abundance has and will continue to decline substantially under current demographic and stressor conditions, primarily driven by the effects of WNS. As part of our assessment of the current condition of northern long-eared bat's representation, we identified and delineated the variation across the northern long-eared bat's range into geographical representation units (RPUs) using the following proxies: Variation in biological traits, genetic diversity, peripheral populations, habitat niche diversity, and steep environmental gradients.
Winter abundance (from known hibernacula) has declined rangewide (49 percent) and declined across all but one RPU (declines range from 0 to 90 percent). The number of extant winter colonies also declined rangewide (by 81 percent) and across all RPUs (40-88 percent). There has also been a noticeable shift towards smaller colony sizes, with a 96-100 percent decline in the number of large hibernacula (≥100 individuals) across the RPUs (figure 1.). We created projections (highest plausible and lowest plausible scenarios) for the species using its current condition and the current rates of mortality from WNS effects and wind energy. Rangewide abundance is projected to decline by 95 percent and the spatial extent to decline by 75 percent from historical conditions by 2030. Declines continue to be driven by the catastrophic effects of WNS.
Declining trends in abundance and extent of occurrence are also evident across much of the northern long-eared bat's summer range. Rangewide occupancy has declined by 80 percent from 2010-2019. Data collected from mobile acoustic transects found a 79 percent decline in rangewide relative abundance from 2009-2019, and summer mist-net captures declined by 43-77 percent (across RPUs) compared to pre-WNS capture rates.
As discussed above, multiple data types and analyses indicate downward trends in northern long-eared bat population abundance and distribution over the last 14 years, and the best available information indicates that this downward trend will continue. Northern long-eared bat abundance (winter and summer), number of occupied hibernacula, spatial extent, and summer habitat occupancy across the range and within all RPUs are decreasing. Since the occurrence of WNS, northern long-eared bat abundance has steeply declined, leaving populations with small numbers of individuals. At these low population sizes, colonies are vulnerable to extirpation from stochastic events and the deleterious effects of reduced population sizes such as limiting natural selection processes and decreased genetic diversity. Furthermore, small populations generally cannot rescue one another from such a depressed state because of the northern long-eared bat's low reproduction output (one pup per year) and its high philopatry (tending to return to a particular area). These inherent life-history traits limit the ability of populations to recover from low abundances. Consequently, effects of small population sizes exacerbate the effects of current and future declines due to continued exposure to WNS, mortality from wind turbines, and impacts associated with habitat loss and climate change.
Therefore, northern long-eared bat's resiliency is greatly compromised in its current condition. Because northern long-eared bat's abundance and spatial extent have so dramatically declined, it has also become more vulnerable to catastrophic events. In other words, its redundancy has also declined dramatically. The steep and continued declines in abundance have likely led to reductions in genetic diversity, and thereby reduced northern long-eared bat adaptive capacity, and a decline in the species' overall representation. Moreover, at its current low abundance, loss of genetic diversity will likely accelerate. Consequently, limited natural selection processes and decreased genetic diversity will further lessen the species' ability to adapt to novel changes and exacerbate declines due to continued exposure to WNS, mortality from wind turbines, and impacts associated with habitat loss and climate change. Thus, even without further WNS spread and additional wind energy development (northern long-eared bat's current condition), its viability is likely to continue to rapidly decline over the next 10 years.
As part of the SSA, we also developed two future condition scenarios to capture the range of uncertainties regarding future threats and the projected responses by the northern long-eared bat. Our scenarios included a plausible highest impact scenario and a plausible lowest impact scenario for each primary threat. Because we determined that the current condition of the northern long-eared bat is consistent with an endangered species (see Determination of Species Status, below), we are not presenting the results of the future scenarios in this proposed rule. Please refer to the SSA report (Service 2021) for the full analysis of future scenarios.
We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the factors
Below is a brief description of conservation measures and regulatory mechanisms currently in place. Please see the SSA report for a more detailed description (Service 2021, Appendix 4).
Multiple national and international efforts are underway in an attempt to reduce the impacts of WNS. Despite these efforts, there are no proven measures to reduce the severity of impacts of WNS. More than 100 State and Federal agencies, Tribes, organizations, and institutions are engaged in this collaborative work to combat WNS and conserve affected bats. Partners from all 37 States in the northern long-eared bat's range, Canada, and Mexico are engaged in collaborations to conduct disease surveillance, population monitoring, and management actions in preparation for or response to WNS.
To reduce bat fatalities, some wind facilities “feather” turbine blades (
All States have active forestry programs with a variety of goals and objectives. Several States have established habitat protection buffers around known Indiana bat hibernacula that will also serve to benefit other bat species by maintaining sufficient quality and quantity of swarming habitat. Some States conduct some of their forest management activities in the winter within known listed bat home ranges as a measure that would protect maternity colonies and non-volant (non-flying) pups during summer months. Depending on the type and timing of activities, forest management can be beneficial to bat species (for example, maintaining or increasing suitable roosting and foraging habitat). Forest management that results in heterogeneous (including forest type, age, and structural characteristics) habitat may benefit tree-roosting bat species such as northern long-eared bat (Silvis et al. 2016, p. 37). Silvicultural practices can meet both male and female northern long-eared bats' roosting requirements by maintaining large-diameter snags in early stages of decay, while allowing for regeneration of forests (Lacki and Schwierjohann 2001, p. 487).
Many State and Federal agencies, conservation organizations, and land trusts have installed bat-friendly gates to protect important hibernation sites. All known hibernacula within national grasslands and forestlands of the Rocky Mountain Region of the U.S. Forest Service (USFS) are closed during the winter hibernation period, primarily due to the threat of WNS, although this will reduce disturbance to bats in general inhabiting these hibernacula (USFS 2013, unpaginated). Because of concern over the importance of bat roosts, including hibernacula, the American Society of Mammalogists developed guidelines for protection of roosts, many of which have been adopted by government agencies and special interest groups (Sheffield
The northern long-eared bat is listed as endangered under Canada's Species at Risk Act (COSEWIC 2013, entire). In addition, the northern long-eared bat receives varying degrees of protection through State laws, which designate the species as endangered in 9 States (Arkansas, Connecticut, Delaware, Indiana, Maine, Massachusetts, Missouri, New Hampshire, and Vermont); as threatened in 10 States (Georgia, Illinois, Louisiana, Maryland, New York, Ohio, Pennsylvania, Tennessee, Virginia, and Wisconsin); and as a species of special concern in 10 States (Alabama, Iowa, Michigan, Minnesota, Mississippi, Oklahoma, South Carolina, South Dakota, West Virginia, and Wyoming).
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an endangered species or a threatened species. The Act defines an “endangered species” as a species in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of an endangered species or a threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.
WNS has been the foremost stressor on the northern long-eared bat for more than a decade and continues to be currently. The fungus that causes the disease,
As a result of these steep population declines, the northern long-eared bat's resiliency is greatly compromised in its current condition. Because the northern long-eared bat's abundance and spatial extent substantially declined, its redundancy has decreased such that northern long-eared bats are more vulnerable to catastrophic events. The northern long-eared bat's representation has also been reduced, as the steep and continued declines in abundance have likely led to reductions in genetic diversity, and thereby reduced the northern long-eared bat's adaptive capacity. Further, the projected widespread reduction in the distribution of occupied hibernacula under current conditions will lead to losses in the diversity of environments and climatic conditions occupied, which will impede natural selection and further limit the northern long-eared bat's ability to adapt to changing environmental conditions. Moreover, at its current low abundance, loss of genetic diversity via genetic drift will likely accelerate. Consequently, limiting natural selection process and decreasing genetic diversity will further lessen the northern long-eared bat's ability to adapt to novel changes (currently ongoing as well as future changes) and exacerbate declines due to continued exposure to WNS and other stressors. Thus, even without further
Current population trends and status indicate this species is currently in danger of extinction. The species continues to experience the catastrophic effects of WNS and the compounding effect of other stressors from which extinction is now a plausible outcome under the current conditions. Therefore, the species meets the Act's definition of an endangered species rather than of a threatened species. Thus, after assessing the best available information, we determine that the northern long-eared bat is in danger of extinction throughout all of its range.
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the northern long-eared bat is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portion of its range. Because the northern long-eared bat warrants listing as endangered throughout all of its range, our determination does not conflict with the decision in
Our review of the best available scientific and commercial information indicates that the northern long-eared bat meets the Act's definition of an endangered species. Therefore, we propose to list the northern long-eared bat as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning consists of preparing draft and final recovery plans, beginning with the development of a recovery outline, and making it available to the public within 30 days of a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (for example, restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.
For listed species, funding for recovery actions is available from a
Please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include, but are not limited to, management and any other landscape-altering activities on Federal lands administered by the U.S. Fish and Wildlife Service, U.S. Forest Service, Bureau of Land Management, National Park Service, and other Federal agencies; issuance of section 404 Clean Water Act (33 U.S.C. 1251
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any species listed as an endangered species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the
At this time, we are unable to identify specific activities that would not be considered to result in a violation of section 9 of the Act because the northern long-eared bat occurs in a variety of habitat conditions across its range and it is likely that site-specific conservation measures may be needed for activities that may directly or indirectly affect the species.
Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act if they are not authorized in accordance with applicable law; this list is not comprehensive:
(1) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens of these taxa at least 100 years old, as defined by section 10(h)(1) of the Act.
(2) Incidental take of the species without authorization pursuant to section 7 or section 10(a)(1)(B) of the Act.
(3) Disturbance or destruction (or otherwise making a hibernaculum no longer suitable) of known hibernacula due to commercial or recreational activities during known periods of hibernation.
(4) Unauthorized destruction or modification of suitable forested habitat (including unauthorized grading, leveling, burning, herbicide spraying, or other destruction or modification of habitat) in ways that kills or injures individuals by significantly impairing the species' essential breeding, foraging, sheltering, commuting, or other essential life functions.
(5) Unauthorized removal or destruction of trees and other natural and manmade structures being used as roosts by the northern long-eared bat that results in take of the species.
(6) Unauthorized release of biological control agents that attack any life stage of this taxon.
(7) Unauthorized removal or exclusion from buildings or artificial structures being used as roost sites by the species, resulting in take of the species.
(8) Unauthorized building and operation of wind energy facilities within areas used by the species, which results in take of the species.
(9) Unauthorized discharge of chemicals, fill, or other materials into sinkholes, which may lead to contamination of known northern long-eared bat hibernacula.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Minnesota Wisconsin Ecological Services Field Office (see
If this rule is adopted as proposed, it would reclassify the northern long-eared bat from a threatened species to an endangered species on the List of Endangered and Threatened Wildlife. It would also remove the species-specific section 4(d) rule for the northern long-eared bat, because 4(d) rules apply only to species listed as threatened species under the Act. The Act's full suite of prohibitions and exceptions to those prohibitions for endangered species (see sections 9 and 10 of the Act) would then apply to the northern long-eared bat.
We have scheduled a public informational meeting with a public hearing on this proposed rule for the northern long-eared bat. We will hold the public informational meeting and public hearing on the date and time listed above under
The public hearing will provide interested parties an opportunity to present verbal testimony (formal, oral comments) regarding this proposed rule. While the public informational meeting will be an opportunity for dialogue with the Service, the public hearing is not: It is a forum for accepting formal verbal testimony. In the event there is a large attendance, the time allotted for oral statements may be limited. Therefore, anyone wishing to make an oral statement at the public hearing for the record is encouraged to provide a prepared written copy of their statement to us through the Federal eRulemaking Portal, or U.S. mail (see
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We solicited information, provided updates, and invited participation in the SSA process in emails sent to Tribes, nationally, in April 2020 and November 2020. We will continue to work with Tribal entities during the development of the northern long-eared bat final listing determination.
A complete list of references cited in this rulemaking is available on the internet at
The primary authors of this proposed rule are staff members of the Fish and Wildlife Service's Species Assessment Team and the Minnesota Wisconsin Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
The Director, U.S. Fish and Wildlife Service, approved this document 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 U.S. Fish and Wildlife Service. Martha Williams, Director, approved this document on March 18, 2022, for publication.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that countervailable subsidies are being provided to producers and exporters of organic soybean meal from India.
Applicable March 23, 2022.
Chien-Min Yang, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5484.
On September 3, 2021, Commerce published the
The period of investigation is January 1, 2020, through December 31, 2020.
The product covered by this investigation is organic soybean meal from India. For a complete description of the scope of this investigation,
During the course of this investigation, Commerce did not receive scope comments from any interested parties. Thus, Commerce is not modifying the scope language as it appeared in the
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. For a list of the issues raised by parties, and to which we responded in the Issues and Decision Memorandum,
Commerce conducted this investigation in accordance with section 701 of the Act. For each of the subsidy programs found countervailable, Commerce determines that there is a subsidy,
In making this final determination, Commerce relied, in part, on the facts otherwise available on the record pursuant to section 776(a) of the Act. Additionally, as discussed in the Issues and Decision Memorandum, because the Government of India and various producers or exporters of subject merchandise did not act to the best of their abilities in responding to our requests for information, we drew adverse inferences, where appropriate, in selecting from among the facts otherwise available, pursuant to section 776(b) of the Act. For further information, see the section “Use of Facts Otherwise Available and Adverse Inferences” in the accompanying Issues and Decision Memorandum.
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 on-site verification to verify the information relied upon in making this final determination, in accordance with section 782(i) of the Act.
Based on our review and analysis of the comments received from parties, we made certain changes to the subsidy rate calculations for Bergwerff Organic India Private Limited (Bergwerff), All Others rate and the calculation of AFA rates. For a discussion of these changes,
In this investigation, the only individually calculated rate that is not
Commerce determines the total estimated net countervailable subsidy rates to be:
Commerce intends to disclose to interested parties its calculations and analysis performed in this final determination within five days of its public announcement, or if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
As a result of our
If the U.S. International Trade Commission (ITC) issues a final affirmative injury determination, we will issue a CVD order and require a cash deposit of estimated countervailing duties for such entries of subject merchandise in the amounts indicated above, in accordance with section 706(a) of the Act. If the ITC determines that material injury, or threat of material injury, does not exist, this proceeding will be terminated, and all estimated duties deposited or securities posted as a result of the suspension of liquidation will be refunded or canceled.
In accordance with section 705(d) of the Act, Commerce will notify the ITC of its final affirmative determination that countervailable subsidies are being provided to producers and exporters of organic soybean meal from India. As Commerce's final determination is affirmative, in accordance with section 705(b) of the Act, the ITC will determine, within 45 days, whether the domestic industry in the United States is materially injured, or threatened with material injury. In addition, we are making available to the ITC all non-privileged and nonproprietary information related to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order (APO), without the written consent of the Assistant Secretary for Enforcement and Compliance.
In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties subject to the APO of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This determination is issued and published pursuant to sections 705(d) and 771(i) of the Act, and 19 CFR 351.210(c).
The merchandise subject to the investigation is certified organic soybean meal. Certified organic soybean meal results from the mechanical pressing of certified organic soybeans into ground products known as soybean cake, soybean chips, or soybean flakes, with or without oil residues. Soybean cake is the product after the extraction of part of the oil from soybeans. Soybean chips and soybean flakes are produced by cracking, heating, and flaking soybeans and reducing the oil content of the conditioned product. “Certified organic soybean meal” is certified by the U.S. Department of Agriculture (USDA) National Organic Program (NOP) or equivalently certified to NOP standards or NOP-equivalent
Certified organic soybean meal subject to this investigation has a protein content of 34 percent or higher.
Organic soybean meal that is otherwise subject to this investigation is included when incorporated in admixtures, including but not limited to prepared animal feeds. Only the organic soybean meal component of such admixture is covered by the scope of this investigation.
The products covered by this investigation are currently classified under the following Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 1208.10.0010 and 2304.00.0000. Certified organic soybean meal may also enter under HTSUS 2309.90.1005, 2309.90.1015, 2309.90.1020, 2309.90.1030, 2309.90.1032, 2309.90.1035, 2309.90.1045, 2309.90.1050, and 2308.00.9890.
The HTSUS subheadings and specifications are provided for convenience and customs purposes; the written description of the scope is dispositive.
International Trade Administration (ITA), Department of Commerce.
Notice.
The Department of Commerce, ITA, is amending the Notice published at 87 FR 9318 (February 18, 2022), regarding the dates for submission of applications for appointment, or reappointment, to the U.S. Section of the U.S.-India CEO Forum. ITA will accept applications on a rolling basis for membership on the U.S. Section of the Forum for terms that will begin upon appointment and will expire on December 31, 2024. Immediate consideration will now be given to applications received by April 6, 2022. ITA will accept nominations under this notice on an on-going basis during the charter term to fill vacancies as they arise.
For inquiries and an application, please contact Noor Sclafani, International Trade Specialist, Office of South Asia, U.S. Department of Commerce, by email at
Noor Sclafani, International Trade Specialist, Office of South Asia, U.S. Department of Commerce, telephone: (202) 823-1840.
Please refer to Notice published at 87 FR 9318 (February 18, 2022).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) has completed its administrative review of the antidumping duty order on fresh garlic from the People's Republic of China (China) for the period of review (POR) November 1, 2019, through October 31, 2020. We determine that mandatory respondent, Jining Shunchang Import & Export Co., Ltd. (Shunchang) failed to establish its eligibility for a separate rate and, therefore, is part of the China-wide entity. We are rescinding the review with respect to Zhengzhou Harmoni Spice Co., Ltd. (Harmoni).
Applicable March 23, 2022.
Jacob Saude, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0981.
On November 30, 2021, Commerce published the preliminary results of the twenty-sixth administrative review of fresh garlic from China.
The products subject to the order are all grades of garlic, whole or separated into constituent cloves, whether or not peeled, fresh, chilled, frozen, provisionally preserved, or packed in water or other neutral substance, but not prepared or preserved by the addition of other ingredients or heat processing. The differences between grades are based on color, size, sheathing, and level of decay. The scope of the order does not include the following: (a) Garlic that has been mechanically harvested and that is primarily, but not exclusively, destined for non-fresh use; or (b) garlic that has been specially prepared and cultivated prior to planting and then harvested and otherwise prepared for use as seed. The subject merchandise is used principally as a food product and for seasoning. The subject garlic is currently classifiable under subheadings: 0703.20.0000, 0703.20.0005, 0703.20.0010, 0703.20.0015, 0703.20.0020, 0703.20.0090, 0710.80.7060, 0710.80.9750, 0711.90.6000, 0711.90.6500, 2005.90.9500, 2005.90.9700, and 2005.99.9700, of the Harmonized Tariff Schedule of the United States (HTSUS).
Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive. In order to be excluded from the order, garlic entered under the HTSUS subheadings listed above that is: (1) Mechanically harvested and primarily, but not exclusively, destined for nonfresh use; or (2) specially prepared and cultivated prior to planting and then harvested and otherwise prepared for use as seed must be accompanied by declarations to U.S. Customs and Border Protection (CBP) to that effect.
In the
Commerce's policy regarding conditional review of the China-wide entity applies to this administrative review.
Commerce determines that the following weighted-average dumping margin exists for the administrative review covering the period November 1, 2019, through October 31, 2020:
Pursuant to section 751(a)(2)(C) of the Act, and 19 CFR 351.212(b), Commerce has determined, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. Commerce intends to direct CBP to assess rates based on the per-unit (
The following cash deposit requirements will be effective upon publication of the final results of this review for shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date of this notice in the
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of 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.
We are issuing and publishing these final results in accordance with sections
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of this sunset review, the Department of Commerce (Commerce) finds that revocation of the countervailing duty (CVD) order on stainless steel plate in coils (SSPC) from South Africa would be likely to lead to continuation or recurrence of countervailable subsidies at the levels indicated in the “Final Results of Sunset Review” section of this notice.
Applicable March 23, 2022.
Kristen Johnson, 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) 482-4793.
On May 11, 1999, Commerce published in the
On January 3, 2022, Commerce received an adequate substantive response from the domestic interested parties within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i).
The merchandise subject to the
The merchandise subject to the
Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to the
A complete discussion of all issues raised in this sunset review, including the likelihood of continuation or recurrence of subsidization in the event of revocation of the
Pursuant to sections 751(c)(1) and 752(b) of the Act, we determine that revocation of the
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
Commerce is issuing and publishing these final results and this notice in accordance with sections 751(c), 752(b), and 777(i)(1) of the Act and 19 CFR 351.218.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that organic soybean meal from India is being, or is likely to be, sold in the United States at less than fair value (LTFV).
Applicable March 23, 2022.
Andrew Huston, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4261.
On November 2, 2021, Commerce published the
The period of investigation is January 1, 2020, through December 31, 2020.
The product covered by this investigation is organic soybean meal from India. For a complete description of the scope of this investigation,
No interested party commented on the scope of the investigation as it appeared in the
All issues raised in the case briefs and rebuttal briefs submitted by interested parties in this proceeding are discussed in the Issues and Decision Memorandum. A list of the issues raised by parties and responded to by Commerce in the Issues and Decision Memorandum is attached to this notice as Appendix II. The Issues and Decision Memorandum is a public document and is available electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Commerce was unable to conduct on-site verification of the information relied upon in making its final determination in this investigation. However, we took additional steps in lieu of an on-site verification to verify the information relied upon in making this final determination, in accordance with section 782(i) of the Tariff Act of 1930, as amended (the Act).
Based on our analysis of the comments received and additional information obtained since our preliminary findings, we made certain changes to the margin calculations for Bergwerff Organic India Private Limited (Bergwerff), the sole cooperative respondent in this investigation, after the
Section 735(c)(5)(A) of the Act provides that the estimated weighted-average dumping margin for all other producers and exporters not individually investigated shall be equal to the weighted average of the estimated weighted-average dumping margins established for individually investigated exporters and producers, excluding any margins that are zero or
The estimated weighted-average dumping margins are as follows:
Commerce intends to disclose its calculations and analysis performed to interested parties in this final determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
In accordance with section 735(c)(1)(B) of the Act, we will instruct U.S. Customs and Border Protection (CBP) to continue the suspension of liquidation of all appropriate entries of organic soybean meal, as described in Appendix I of this notice, which were entered, or withdrawn from warehouse, for consumption on or after November 2, 2022, the date of publication of the
Pursuant to section 735(c)(1)(B)(ii) of the Act, we will instruct CBP to require a cash deposit equal to the estimated amount by which the normal value exceeds the U.S. price as follows: (1) The cash deposit rate for the respondent listed above will be equal to the respondent-specific estimated weighted-average dumping margin determined in this final determination; (2) if the exporter is not a respondent identified above, but the producer is, then the cash deposit rate will be equal to the respondent-specific estimated weighted-average dumping margin established for that producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will be equal to the all-others estimated weighted-average dumping margin. These suspension of liquidation instructions will remain in effect until further notice.
In the event that a countervailing duty (CVD) order is issued, and suspension of liquidation is resumed in the companion CVD investigation of soybean meal from India, Commerce will instruct CBP to require, for this antidumping duty investigation, cash deposits adjusted by the amount of export subsidies, as appropriate. These adjustments are reflected in the final column of the rate chart, above. Until such suspension of liquidation is resumed in the companion CVD investigation, and so long as suspension of liquidation continues under this antidumping duty investigation, the cash deposit rates for this antidumping duty investigation will be the rates identified in the estimated weighted-average dumping margin column in the rate chart, above.
In accordance with section 735(d) of the Act, Commerce will notify the International Trade Commission (ITC) of its final affirmative determination of sales at LTFV. Because the final determination in this proceeding is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, no later than 45 days after our final determination. If the ITC determines that material injury or threat of material injury does not exist, the proceeding will be terminated, and all cash deposits will be refunded. If the ITC determines that material injury or threat of material injury does exist, Commerce will issue an antidumping duty order directing CBP to assess, upon further instruction by Commerce, antidumping duties on all imports of the subject merchandise, entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a violation subject to sanction.
This determination is issued and published in accordance with sections 735(d) and 777(i) of the Act and 19 CFR 351.210(c).
The merchandise subject to the investigation is certified organic soybean meal. Certified organic soybean meal results from the mechanical pressing of certified organic soybeans into ground products known as soybean cake, soybean chips, or soybean flakes, with or without oil residues. Soybean cake is the product after the extraction of part of the oil from soybeans. Soybean chips and soybean flakes are produced by cracking, heating, and flaking soybeans and reducing the oil content of the conditioned product. “Certified organic soybean meal” is certified by the U.S. Department of Agriculture (USDA) National Organic Program (NOP) or equivalently certified to NOP standards or NOP-equivalent standards under an existing organic equivalency or recognition agreement.
Certified organic soybean meal subject to this investigation has a protein content of 34 percent or higher.
Organic soybean meal that is otherwise subject to this investigation is included when incorporated in admixtures, including but not limited to prepared animal feeds. Only the organic soybean meal component of such admixture is covered by the scope of this investigation. The products covered by this investigation are currently classified under the following Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 1208.10.0010 and 2304.00.0000. Certified organic soybean meal may also enter under HTSUS 2309.90.1005, 2309.90.1015, 2309.90.1020, 2309.90.1030, 2309.90.1032, 2309.90.1035, 2309.90.1045, 2309.90.1050, and 2308.00.9890.
The HTSUS subheadings and specifications are provided for convenience and customs purposes; the written description of the scope is dispositive.
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
In 2010, we implemented a new suite of regulations for the Northeast (NE) multispecies fishery through Amendment 16 to the NE Multispecies Fishery Management Plan (FMP). This action updated status determination criteria for all regulated NE multispecies or ocean pout stocks; adopted rebuilding programs for NE multispecies (groundfish) stocks newly classified as being overfished and subject to overfishing; revised management measures, including significant revisions to the sector management measures (established under Amendment 13) necessary to end overfishing, rebuild overfished regulated NE multispecies and ocean pout stocks, and mitigate the adverse economic impacts of increased effort controls. It also implemented new requirements under Amendment 16 for establishing acceptable biological catch, annual catch limits (ACLs), and accountability measures for each stock managed under the FMP, pursuant to the Magnuson-Stevens Act.
Sectors are a management tool in the groundfish fishery. A sector consists of three or more limited access NE multispecies vessel permits, with distinct ownership, who voluntarily enter into a contract to manage their fishing operations and to share liability.
This revision incorporates a number of recent changes. Amendment 16 required sectors to develop and fund an independent third-party at-sea monitoring (ASM) program. Amendment 16 allowed sectors to use electronic monitoring (EM) instead of human monitors to meet ASM requirements, provided that the Greater Atlantic Regional Administrator deemed it sufficient. Using the authority and process granted to the agency in Amendment 16, NMFS announced its determination that sectors may use EM to meet monitoring requirements (86 FR 16686; March 31, 2021). To implement this change, we are proposing to collect additional data elements necessary to support an electronic monitoring program. Specifically, we propose to require the development and submission of vessel monitoring plans and trip-level feedback reports, both of which are critical for accurate catch data and management of ACLs. We also propose to require the collection of information related to the purchase and installation of EM equipment. This is necessary for NMFS to reimburse industry's ASM costs as directed and funded by Congressional appropriations.
In 2020, the Northwest Atlantic Fisheries Organization (NAFO) established a new requirement that vessels fishing in the NAFO Regulatory Area must submit daily catch reports via a vessel monitoring system (VMS) and NMFS implemented this requirement to ensure compliance with NAFO reporting requirements. Daily VMS catch reports allow for near real-time quota monitoring and are necessary for the management of ACLs.
This revision removes information collections related to VMS activation confirmation responses, time and costs, and the cost of purchase, maintenance and automated polling, which was transferred to OMB control number 0648-0202. This revision also removes the Closed Area I Hook Gear Haddock SAP from the US/Canada Area and CA II SAPS, Closed Area I SAP and Regular B Program catch reporting estimates because NMFS removed the regulations implementing this SAP after it was eliminated as part of the Omnibus Essential Fish Habitat Amendment 2 (85 FR 19129; April 6, 2020).
This information collection request may be viewed at
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
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
Longline vessel operators are also required to submit pre-trip notifications, including information on trip type, departure time, and transit through a protected species zone per 50 CFR 665.803. Other fisheries are required to submit notifications of trip return, unloading, or sales reports per regulations in multiple Subparts of 50 CFR 665.
This information collection request may be viewed at
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
National Oceanic & Atmospheric Administration (NOAA), Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before May 23, 2022.
Interested persons are invited to submit written comments to Adrienne Thomas, NOAA PRA Officer, at
Requests for additional information or specific questions related to collection activities should be directed to Richard Powell, (302) 703-9041, or
This request is for a revision and extension of a currently approved information collection.
NOAA's Office of Coast Survey (Coast Survey) is the nation's nautical chartmaker, maintaining and updating over a thousand charts covering the 3.5 million square nautical miles of coastal waters in the U.S. Exclusive Economic Zone and the Great Lakes. The marine transportation system relies on charting accuracy and precision to keep navigation safe and coastal communities protected from environmental disasters at sea.
Coast Survey also writes and publishes the
The marine environment and shorelines are constantly changing. NOAA makes every effort to update information portrayed in charts and described in the Coast Pilot. Sources of information include, but are not limited to: Pilot associations, shipping companies, towboat operators, state marine authorities, city marine authorities, local port authorities, marine operators, hydrographic research vessels, naval vessels, Coast Guard cutters, merchant vessels, fishing vessels, pleasure boats, U.S. Power Squadron Units, U.S. Coast Guard Auxiliary Units, and the U.S. Army Corps of Engineers (USACE).
The purpose of NOAA's Nautical Discrepancy and Data Reporting System is to offer formal, standardized instruments for recommending changes, corrections, and updates to nautical charts and the Coast Pilot, and to monitor and document the accepted changes. Coast Survey solicits information through the Aimed Stakeholder Interaction and Survey Tool (ASSIST) (
This collection also includes a Citizen Science component, which allows boating groups or individuals to submit reports to update the charts. The Citizen Science component to the collection benefits Coast Survey by allowing the public to “adopt” a product or part of a product and provide annual data updates that directly affect that product or products. Data obtained through Citizen Science reports may be used to update certain U.S. nautical charts and the Coast Pilot.
The Nautical Data Branch (NDB) receives numerous potential construction notifications in the form of USACE-issued Public Notices, Permit Applications, and Permits, which could include a proposal or authorization to dredge and/or construct, remove, or abandon structures. NDB vets these Public Notices, Permit Applications, or Permits for the potential of a charting action and registers them into a database. To facilitate the ability of NDB to learn the status of USACE-permitted projects and to obtain as-built and/or survey data associated with the completion of these projects, Coast Survey is proposing to add three Project Status Report Forms to the collection. The solicitation forms, titled
These forms provide an effective way for permittees to notify MCD of the status of their permitted projects and help MCD garner pertinent data necessary for chart application. This mode of data delivery facilitates the ability of NDB to capture complete, more efficient, registration-ready source packages that require less frequent correspondence with the permittee prior to source registration. This process is instrumental in accelerating the availability of important, and/or possibly critical, nautical data to the cartographic production branches for charting action.
The title of this collection is also being updated from Nautical Discrepancy Reporting System to Nautical Discrepancy and Data Reporting System.
Respondents can submit discrepancy reports electronically through the ASSIST website or by telephone (888-990-6622).
After completion, respondents can submit the Status Report Forms, and provide any associated as-built/survey data, to NDB by mail or via email.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Consumer Financial Protection.
Notice of public meeting.
Under the Federal Advisory Committee Act (FACA), this notice sets forth the announcement of a public meeting of the Community Bank Advisory Council (CBAC or Council) of the Consumer Financial Protection Bureau (Bureau). The notice also describes the functions of the Council.
The meeting date is Thursday, April 7, 2022, from approximately 1:00 p.m. to 5:00 p.m. eastern daylight time. This meeting will be held virtually and is open to the general public. Members of the public will receive the agenda and dial-in information when they RSVP.
Kim George, Outreach and Engagement Associate, Section for Advisory Board and Councils, Office of Stakeholder Management, at 202-450-8617, or email:
Section 2 of the CBAC Charter provides that pursuant to the executive and administrative powers conferred on the Bureau by section 1012 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Director established the Community Bank Advisory Council under agency authority.
Section 3 of the CBAC Charter states: “The purpose of the CBAC is to advise the Bureau in the exercise of its functions under the Federal consumer financial laws as they pertain to community banks with total assets of $10 billion or less.”
The CBAC will discuss broad policy matters related to the Bureau's Unified Regulatory Agenda and general scope of authority.
Persons who need a reasonable accommodation to participate should contact
Written comments will be accepted from interested members of the public and should be sent to
The Council's agenda will be made available to the public on Wednesday, April 6, 2022, via
A recording and summary of this meeting will be available after the meeting on the Bureau's website
Bureau of Consumer Financial Protection.
Notice of public meeting.
Under the Federal Advisory Committee Act (FACA), this notice sets forth the announcement of a public meeting of the Consumer Advisory Board (CAB) of the Consumer Financial Protection Bureau (CFPB). The notice also describes the functions of the advisory board.
The meeting date is Wednesday, April 6, 2022, from approximately 1:00 p.m. to 5:00 p.m. eastern daylight time. This meeting will be held virtually and
Kim George, Outreach and Engagement Associate, Section for Advisory Board and Councils, Office of Stakeholder Management, at 202-450-8617, or email:
Section 3 of the Charter of the CAB states that: The purpose of the CAB is outlined in section 1014(a) of the Dodd-Frank Act, which states that the CAB shall “advise and consult with the Bureau in the exercise of its functions under the Federal consumer financial laws” and “provide information on emerging practices in the consumer financial products or services industry, including regional trends, concerns, and other relevant information.”
To carry out the CAB's purpose, the scope of its activities shall include providing information, analysis, and recommendations to the Bureau. The CAB will generally serve as a vehicle for trends and themes in the consumer finance marketplace for the Bureau. Its objectives will include identifying the impact on consumers and other market participants of new, emerging, and changing products, practices, or services.
The CAB will discuss broad policy matters related to the CFPB's Unified Regulatory Agenda and general scope of authority.
Persons who need a reasonable accommodation to participate should contact
Written comments will be accepted from interested members of the public and should be sent to
The CAB's agenda will be made available to the public on Tuesday, April 5, 2022, via
A recording and summary of this meeting will be available after the meeting on the CFPB's website
Bureau of Consumer Financial Protection.
Notice of public meeting.
Under the Federal Advisory Committee Act (FACA), this notice sets forth the announcement of a public meeting of the Academic Research Council (ARC or Council) of the Consumer Financial Protection Bureau (Bureau). The notice also describes the functions of the Council.
The meeting date is Friday, April 8, 2022, from approximately 1:00 p.m. to 5:00 p.m. eastern daylight time. This meeting will be held virtually and is open to the general public. Members of the public will receive the agenda and dial-in information when they RSVP.
Kim George, Outreach and Engagement Associate, Section for Advisory Board and Councils, Office of Stakeholder Management, at 202-450-8617, or email:
Section 2 of the of the ARC Charter provides that pursuant to the executive and administrative powers conferred on the Bureau by section 1012 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), the Director established the Academic Research Council under agency authority. Section 3 of the ARC Charter states: “The committee will (1) provide the Bureau with advice about its strategic research planning process and research agenda, including views on the research that the Bureau should conduct relating to consumer financial products or services, consumer behavior, cost-benefit analysis, or other topics to enable the agency to further its statutory purposes and objectives; and (2) provide the Office of Research with technical advice and feedback on research methodologies, data collection strategies, and methods of analysis, including methodologies and strategies for quantifying the costs and benefits of regulatory actions.” The duties of the ARC are solely advisory and shall extend only to the submission of advice and recommendations to the Bureau.
The ARC will discuss broad policy matters related to the Bureau's Research Agenda and general scope of authority.
Persons who need a reasonable accommodation to participate should contact
Written comments will be accepted from interested members of the public and should be sent to
The Council's agenda will be made available to the public on Thursday, April 7, 2022 via
A recording and transcript of this meeting will be available after the
Bureau of Consumer Financial Protection.
Notice of public meeting.
Under the Federal Advisory Committee Act (FACA), this notice sets forth the announcement of a public meeting of the Credit Union Advisory Council (CUAC or Council) of the Consumer Financial Protection Bureau (Bureau). The notice also describes the functions of the Council.
The meeting date is Thursday, April 7, 2022, from approximately 1:00 p.m. to 5:00 p.m. eastern daylight time. This meeting will be held virtually and is open to the general public. Members of the public will receive the agenda and dial-in information when they RSVP.
Kim George, Outreach and Engagement Associate, Section for Advisory Board and Councils, Office of Stakeholder Management, at 202-450-8617, or email:
Section 2 of the CUAC Charter provides that pursuant to the executive and administrative powers conferred on the Bureau by section 1012 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), the Director established the Credit Union Advisory Council under agency authority.
Section 3 of the CUAC Charter states: “The purpose of the CUAC is to advise the Bureau in the exercise of its functions under the Federal consumer financial laws as they pertain to credit unions with total assets of $10 billion or less.”
The CUAC will discuss broad policy matters related to the Bureau's Unified Regulatory Agenda and general scope of authority.
Persons who need a reasonable accommodation to participate should contact
Written comments will be accepted from interested members of the public and should be sent to
The Council's agenda will be made available to the public on Wednesday, April 6, 2022, via
A recording and summary of this meeting will be available after the meeting on the Bureau's website
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
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 on March 7, 2022, Chesapeake Utilities Corporation (Chesapeake), 909 Silver Lake Boulevard, Dover, Delaware 19904, filed in Docket No. CP22-069-000 an abbreviated application under section 7(f) of the Natural Gas Act (NGA), and Part 157 of the Commission's regulations, that would allow it to amend its previously granted Initial Service Area to include Worcester County, Maryland. Amending the Initial Service Area will allow Chesapeake to extend its natural gas facilities across the Delaware/Maryland state line from the area around Fenwick Island, Delaware into the area of North Ocean City, Maryland and would allow Chesapeake to enlarge or expand its natural gas distribution facilities in the specified area without further Commission authorization.
Chesapeake operates separate natural gas local distribution companies in both Delaware and Maryland, subject to regulation by the Delaware Public Service Commission and the Maryland Public Service Commission, respectively. Chesapeake's Delaware service area includes portions of all three of the state's counties. In
In addition to publishing the full text of this document in the
Any questions regarding this filing may be directed to Brian M. Quinn, Counsel for Chesapeake Utilities, 210 W Pennsylvania Avenue, Suite 500, Towson, Maryland 21204, by phone at (410) 494-6621, or by email at
Pursuant to Section 157.9 of the Commission's Rules of Practice and Procedure,
There are two ways to become involved in the Commission's review of this project: you can file comments on the project, and you can file a motion to intervene in the proceeding. There is no fee or cost for filing comments or intervening. The deadline for filing a motion to intervene is 5:00 p.m. Eastern Time on April 7, 2022.
Any person wishing to comment on the project may do so. Comments may include statements of support or objections to the project as a whole or specific aspects of the project. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please submit your comments on or before April 7, 2022.
There are three methods you can use to submit your comments to the Commission. In all instances, please reference the Project docket number CP22-69-000 in your submission.
(1) You may file your comments electronically by using the eComment feature, which is located on the Commission's website at
(2) You may file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the following address below.
The Commission encourages electronic filing of comments (options 1 and 2 above) and has eFiling staff available to assist you at (202) 502-8258 or
Persons who comment on the environmental review of this project will be placed on the Commission's environmental mailing list, and will receive notification when the environmental documents (EA or EIS) are issued for this project and will be notified of meetings associated with the Commission's environmental review process.
The Commission considers all comments received about the project in determining the appropriate action to be taken. However, the filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding. For instructions on how to intervene, see below.
Any person, which includes individuals, organizations, businesses, municipalities, and other entities,
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
There are two ways to submit your motion to intervene. In both instances, please reference the Project docket number CP22-69-000 in your submission.
(1) You may file your motion to intervene by using the Commission's
(2) You can file a paper copy of your motion to intervene, along with three copies, by mailing the documents to the address below.
The Commission encourages electronic filing of motions to intervene (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served on the applicant either by mail or email (with a link to the document) at: 210 W Pennsylvania Avenue Suite 500, Towson, Maryland 21204 or at
All timely, unopposed
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit the information collection request (ICR Safe Management of Recalled Airbags Rule (EPA ICR No. 2589.05, OMB Control No. 2050-0221) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described in
Comments must be submitted on or before May 23, 2022.
Submit your comments, referencing by Docket ID No. EPA-HQ-OLEM-2018-0646, at
Due to public health concerns related to COVID-19, the EPA Docket Center and Reading Room are open to the public by appointment only. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at
The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.
Tracy Atagi, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-566-0511; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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,
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Landfill Methane Outreach Program (EPA ICR Number 1849.10, OMB Control Number 2060-0446) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through April 30, 2022. Public comments were previously requested via the
Additional comments may be submitted on or before April 22, 2022.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2003-0078, online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Lauren Aepli, Climate Change Division, Office of Atmospheric Programs, (6207A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 343-9423; fax number: (202) 343-2342; email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice.
EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products. Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is hereby providing notice of receipt and opportunity to comment on these applications.
Comments must be received on or before April 22, 2022.
Submit your comments, identified by docket identification (ID) number and the File Symbol of interest as shown in the body of this document, 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. For the latest status information on EPA/DC services and access, visit
Charles Smith, Biopesticides and Pollution Prevention Division (BPPD) (7511P), main telephone number: (703) 305-7090, email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
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EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products. Pursuant to the provisions of FIFRA section 3(c)(4) (7 U.S.C. 136a(c)(4)), EPA is hereby providing notice of receipt and opportunity to comment on these applications. Notice of receipt of these applications does not imply a decision by the Agency on these applications. For actions being evaluated under EPA's public participation process for registration actions, there will be an additional opportunity for public comment on the proposed decisions. Please see EPA's public participation website for additional information on this process (
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Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted the following information collection request (ICR), Labeling Requirements for Certain Minimum Risk Pesticides under FIFRA Section 25(b) (EPA ICR Number 2475.04, OMB Control Number 2070-0187) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through April 30, 2022. Public comments were previously requested via the
Additional comments may be submitted on or before April 22, 2022.
Submit your comments to EPA, referencing Docket ID No. EPA-HQ-2021-0346, online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Nora Stoner, Mission Support Division, Office of Program Support, Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency (Mailcode: 7101M), 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-0355; email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
The labeling requirements are the key component of the minimum risk exemption since this is the only information that enforcement authorities have to assess whether or not the product meets the exemption requirements. While EPA does not review these products, and therefore a Federal label review is not conducted, to maintain exemption status, an exempt product's label must meet certain criteria.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit the information collection request (ICR), Recordkeeping and Reporting—Solid Waste Disposal Facilities and Practices; “(EPA ICR No. 1381.13, OMB Control No. 2050-0122) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described in
Comments must be submitted on or before May 23, 2022.
Submit your comments, referencing by Docket ID No. EPA-HQ-OLEM-2018-0767, at
Due to public health concerns related to COVID-19, the EPA Docket Center and Reading Room are open to the public by appointment only. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at
The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.
Craig Dufficy, Materials Recovery and Waste Management Division, Office of Resource Conservation and Recovery, Mail Code 3204A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 566-0537; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is planning to submit an information collection request (ICR), “Brownfields Program—Accomplishment Reporting (Renewal)” (EPA ICR No. 2104.09, OMB Control No. 2050-0192 to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. Before doing so, EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension and update of the ICR, which is currently approved through December 31, 2024. 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.
Comments must be submitted on or before May 23, 2022.
Submit your comments, referencing Docket ID No. EPA-HQ-SFUND-2012-0104 online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Kelly Gorini, Office of Brownfields and Land Revitalization, (5105T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 566-1702; fax number: (202) 566-1476; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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,
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit the information collection request (ICR), Facility Ground-Water Monitoring Requirements (Renewal) (EPA ICR No. 0959.17, OMB Control No. 2050-0033) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described in
Comments must be submitted on or before May 23, 2022.
Submit your comments, referencing by Docket ID No. EPA-HQ-OLEM-2018-0391, at
Due to public health concerns related to COVID-19, the EPA Docket Center and Reading Room are open to the public by appointment only. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at
The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.
Peggy Vyas, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-566-0453; fax number: email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed
This ICR examines the ground-water monitoring standards for permitted and interim status facilities at 40 CFR parts 264 and 265, as specified. The ground-water monitoring requirements for regulated units follow a tiered approach whereby releases of hazardous contaminants are first detected (detection monitoring), then confirmed (compliance monitoring), and if necessary, are required to be cleaned up (corrective action). Each of these tiers requires collection and analysis of ground-water samples. Owners or operators that conduct ground-water monitoring are required to report information to the oversight agencies on releases of contaminants and to maintain records of ground-water monitoring data at their facilities. The goal of the ground-water monitoring program is to prevent and quickly detect releases of hazardous contaminants to groundwater, and to establish a program whereby any contamination is expeditiously cleaned up as necessary to protect human health and environment.
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than April 7, 2022.
1.
Federal Trade Commission.
Proposed consent agreement; request for comment.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices. The attached Analysis of Proposed Consent Order to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before April 22, 2022.
Interested parties may file comments online or on paper by following the instructions in the Request for Comment part of the
Elizabeth Averill (202-326-2993), Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before April 22, 2022. Write “Health Research Laboratories, LLC; Docket No. 9397” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the
Due to the COVID-19 pandemic and the agency's heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comments online through the
If you prefer to file your comment on paper, write “Health Research Laboratories, LLC; Docket No. 9397” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex D), Washington, DC 20580. If possible, submit your paper comment to the Commission by overnight service.
Because your comment will be placed on the publicly accessible website at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request and must identify the specific portions of the comment to be withheld from the public record.
Visit the FTC website at
The Federal Trade Commission (“FTC” or “Commission”) has accepted, subject to final approval, an agreement containing a consent order from Health Research Laboratories, LLC; Whole Body Supplements, LLC; and their Managing Member and officer, Kramer Duhon (“Respondents”).
The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received and will decide whether it should withdraw from the agreement and take appropriate action or make final the agreement's proposed order.
This matter involves the Respondents' advertising for Black Garlic Botanicals, BG18, The Ultimate Heart Formula, and Neupathic. The complaint alleges Respondents violated Sections 5(a) and 12 of the FTC Act by disseminating false and unsubstantiated advertisements claiming that: (1) Black Garlic Botanicals, BG18, and The Ultimate Heart Formula will prevent, reduce the risk of, cure, mitigate, or treat cardiovascular disease, atherosclerosis, and/or hypertension; and (2) Neupathic will cure, treat, or mitigate diabetic neuropathy. Respondents Kramer Duhon and Health Research Laboratories are also parties to a previous federal court order in
The proposed consent order includes injunctive relief that addresses these alleged violations and contains provisions designed to prevent Respondents from engaging in similar acts and practices in the future.
Part I would ban Respondents from advertising, marketing, promoting, or offering for sale any dietary supplements. Part II would ban Respondents from making any disease prevention, reduction of risk, cure, mitigation, or treatment claim when advertising, marketing, promoting, or offering for sale any product.
Part III prohibits Respondents from making any representation about the health benefits, safety, performance, or efficacy of any food or drug, unless the representation is non-misleading, and at the time such representation is made, Respondents possess and rely upon competent and reliable scientific evidence that substantiates that the representation is true. For purposes of
Part IV prohibits Respondents from making misrepresentations: (1) That the performance or benefits of any food or drug are scientifically or clinically proven or otherwise established; or (2) about the existence, contents, validity, results, conclusions, or interpretations of any test, study, or other research.
Part V requires Respondents to preserve supporting data and documents relevant to assessing human clinical tests that they rely on to support claims within the scope of Part III of the proposed order. Part VI requires Respondents to send notices to consumers who purchased Black Garlic Botanicals, BG18, The Ultimate Heart Formula, or Neupathic informing them about this matter and the Commission's order. Part VII prohibits Respondents and their officers, agents, and employees from disclosing, using, or receiving any benefit from customer information that Respondents obtained in connection with sales of Black Garlic Botanicals, BG18, The Ultimate Heart Formula, or Neupathic. Part VIII requires Respondents to cancel any subscription plan with a negative option feature related to Black Garlic Botanicals, BG18, The Ultimate Heart Formula, or Neupathic.
Parts IX through XII of the proposed order relate to compliance reporting and monitoring. Part IX is an order acknowledgment and distribution provision requiring Respondents to acknowledge the order, to provide the order to current and future owners, managers, business partners, certain employees, and to obtain an acknowledgement from each such person that they received a copy of the order. Part X requires Respondents to submit a compliance report one year after the order is entered, and to promptly notify the Commission of corporate changes that may affect compliance obligations. Part XI requires Respondents to maintain, and upon request make available, certain compliance-related records. Part XII requires Respondents to provide additional information or compliance reports, as requested.
Part XIII states that the proposed order will remain in effect for 20 years, with certain exceptions.
The purpose of this analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the complaint or proposed order, or to modify in any way the proposed order's terms.
By direction of the Commission.
Food and Drug Administration, HHS.
Notice; renewal of Federal advisory committee.
The Food and Drug Administration (FDA) is announcing the renewal of the Obstetrics, Reproductive and Urologic Drugs Advisory Committee (formerly known as the Bone, Reproductive and Urologic Drugs Advisory Committee) by the Commissioner of Food and Drugs (the Commissioner). The Commissioner has determined that it is in the public interest to renew the Obstetrics, Reproductive and Urologic Drugs Advisory Committee for an additional 2 years beyond the charter expiration date. The new charter will be in effect until the March 23, 2024, expiration date.
Authority for the Obstetrics, Reproductive and Urologic Drugs Advisory Committee (formerly known as the Bone, Reproductive and Urologic Drugs Advisory Committee) will expire on March 23, 2024, unless the Commissioner formally determines that renewal is in the public interest.
Joyce Frimpong, Division of Advisory Committee and Consultant Management, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, email:
Pursuant to 41 CFR 102-3.65 and approval by the Department of Health and Human Services, FDA is announcing the renewal of the Obstetrics, Reproductive and Urologic Drugs Advisory Committee (the Committee). The Committee is a discretionary Federal advisory committee established to provide advice to the Commissioner. The Committee advises the Commissioner or designee in discharging responsibilities as they relate to helping to ensure safe and effective drugs for human use and, as required, any other product for which FDA has regulatory responsibility.
The Committee reviews and evaluates data on the safety and effectiveness of marketed and investigational human drug products for use in the practice of obstetrics, gynecology, urology and related specialties, and makes appropriate recommendations to the Commissioner.
The Committee shall consist of a core of 11 voting members, including the Chair. Members and the Chair are selected by the Commissioner or designee from among authorities knowledgeable in the fields of obstetrics, gynecology, urology, pediatrics, epidemiology, or statistics and related specialties. Members will be invited to serve for overlapping terms of up to 4 years. Non-Federal members of this committee will serve as Special Government Employees, representatives or Ex-Officio members. Federal members will serve as Regular Government Employees or Ex-Officios. The core of voting members may include one technically qualified member, selected by the Commissioner or designee, who is identified with consumer interests and is recommended by either a consortium of consumer-oriented organizations or other interested persons. In addition to the voting members, the Committee may include one non-voting representative member who is identified with industry interests. There may also be an alternate industry representative.
Further information regarding the most recent charter and other information can be found at
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. App.). For general information related to FDA advisory committees, please visit us at
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In accordance with the Federal Advisory Committee Act, this notice announces that the Secretary's National Advisory Committee on Rural Health and Human Services (NACRHHS) has scheduled a public meeting. Information about NACRHHS and the agenda for this meeting can be found on the NACRHHS website at
• Monday, April 11, 2022, 12:00 p.m.-5:00 p.m. Eastern Time (ET);
• Tuesday, April 12, 2022, 12:00 p.m.-4:00 p.m. ET; and
• Wednesday, April 13, 2022, 12:00 p.m.-5:00 p.m. ET.
This meeting will be held virtually via Zoom webinar. While this meeting is open to the public, advance registration is required.
Please register online at
Steven Hirsch, Administrative Coordinator at the Federal Office of Rural Health Policy, HRSA, 5600 Fishers Lane, 17W59D, Rockville, Maryland 20857; 301-443-7322; or
NACRHHS provides advice and recommendations to the Secretary of Health and Human Service on policy, program development, and other matters of significance concerning both rural health and rural human services.
During the April 11-13, 2022, meeting, NACRHHS will discuss two topics: Access to Emergency Medical Services in Rural America and Rural Human Services Programs and Issues. Agenda items are subject to change as priorities dictate. Refer to the NACRHHS website for any updated information concerning the meeting.
Members of the public will have the opportunity to provide comments. Public participants wishing to provide oral comments must submit a written version of their statement at least 3 business days in advance of the scheduled meeting. Oral comments will be honored in the order they are requested and may be limited as time permits. Public participants wishing to offer a written statement should send it to Steven Hirsch, using the contact information above, at least 3 business days prior to the meeting.
Individuals who plan to attend and need special assistance or another reasonable accommodation should notify Steven Hirsch at the address and phone number listed above at least 10 business days prior to the meeting.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Board on Medical Rehabilitation Research.
The meeting will be held as a virtual meeting and is open to the public. Individuals who plan to view the virtual meeting and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting. The meeting will be videocast and can be accessed from the NIH Videocasting website (
Information is also available on the Institute's/Center's home page:
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A. This information collection request is a revision of an approved collection. The revision consists of updates to the Public Reporting Burden and Privacy Act Statement language on all forms, minor formatting changes on all forms, minimal wording changes for clarification on the HUD-56141, and a decrease in the reported burden hours due to a reduction in the number of respondents and overall claims in HUD's inventory.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
U.S. Geological Survey, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the U.S. Geological Survey (USGS) is proposing to renew an information collection.
Interested persons are invited to submit comments on or before May 23, 2022.
Send your comments on the information collection request (ICR) by mail to the U.S. Geological Survey, Information Collections Clearance Officer, 12201 Sunrise Valley Drive, MS 159, Reston, VA 20192; or by email to
To request additional information about this ICR, contact Eldrich Frazier, Federal Geographic Data Committee (FGDC) Office of the Secretariat, by email at
In accordance with the PRA, we provide the general public and other Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personally identifiable information (PII) in your comment, you should be aware that your entire comment—including your PII—may be made publicly available at any time. While you may ask us in your comment to withhold your PII from public review, we cannot guarantee that we will be able to do so.
An agency may not conduct or sponsor, nor is a person required to respond to, a collection of information unless it displays a currently valid OMB control number.
The authorities for this action are the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
Bureau of Indian Affairs, Interior.
Notice.
The Department of the Interior (Department) gives notice that the group known as the Schaghticoke Indian Tribe has filed a documented petition for Federal acknowledgment as an American Indian Tribe with the Assistant Secretary—Indian Affairs. The Department seeks comment and evidence from the public on the petition.
Comments and evidence must be postmarked by July 5, 2022.
Copies of the narrative portion of the documented petition, as submitted by the petitioner (with any redactions appropriate under 25 CFR 83.21(b)), and other information are available at the Office of Federal Acknowledgment's (OFA) website:
Mr. R. Lee Fleming, OFA Director, Office of the Assistant Secretary—Indian Affairs, by phone: (202) 513-7650; or by email:
Under 25 CFR part 83, the Department gives notice that the group known as the Schaghticoke Indian Tribe has filed a documented petition for Federal acknowledgment as an American Indian Tribe with the Assistant Secretary—Indian Affairs. The Department's revisions to 25 CFR part 83 became final and effective on July 31, 2015 (80 FR 37861). Improving transparency through increased notice of petitions and providing improved public access to petitions were keys goal of the 2015 revisions. Today the Department informs the public that a complete documented petition has been submitted under the current regulations, that portions of that petition are publicly available on the website identified above for easy access, and that we are seeking public comment early in the process on this petition.
Under 25 CFR 83.22(b)(1), OFA publishes notice that the following group has filed a documented petition for Federal acknowledgment as an American Indian Tribe to the Assistant Secretary—Indian Affairs: Schaghticoke Indian Tribe c/o Mr. Alan Russell, P.O. Box 111, Kent, Connecticut, 06757.
Also under 25 CFR 83.22(b)(1), OFA publishes on its website the following:
i. The narrative portion of the documented petition, as submitted by the petitioner (with any redactions appropriate under 25 CFR 83.21(b));
ii. The name, location, and mailing address of the petitioner and other information to identify the entity;
iii. The date of receipt;
iv. The opportunity for individuals and entities to submit comments and evidence supporting or opposing the petitioner's request for acknowledgment within 120 days of the date of the website posting; and
v. The opportunity for individuals and entities to request to be kept informed of general actions regarding a specific petitioner.
Office of the Assistant Secretary, Indian Affairs, Interior.
Notice of solicitation for proposals.
The Secretary of the Interior (Secretary), through the Office of Indian Economic Development (OIED), Division of Economic Development (DED), solicits proposals from eligible applicants (see Section IV. Eligibility for Funding, of this notice) to receive competitive grants to establish and operate business incubators that serve Tribal reservation communities. These grants will provide individually tailored business incubation and other business services to Native businesses and Native entrepreneurs to overcome the unique obstacles they confront and provide tools necessary to start and grow businesses that offer products and services to reservation communities.
Grant application packages must be submitted to
The required method of submitting proposals is through
Mr. Dennis Wilson, Grant Management Specialist, OIED, telephone: (505) 917-3235; email:
OIED anticipates award of approximately 10 to 15 grants under this announcement ranging in value from approximately $100,000 annually to $300,000 annually. IBIP awards will be for a three-year period of performance. OIED will use a competitive evaluation process based on criteria described in the Review and Selection Process section (see Section XII. Review and Selection Process, of this notice).
On October 20, 2020, Congress enacted the Native American Business Incubators Program Act, Public Law 116-174, codified at 25 U.S.C. 5801
The Office of the Assistant Secretary—Indian Affairs, through OIED, is soliciting proposals from eligible entities (as outlined in section IV of this notice) for grant funding to establish Indian Business Incubators that serve entrepreneurs with start-up and early-stage businesses who will provide products or services to Tribal reservation communities. The Indian Business Incubator will deliver a range of business services such as: Mentorships, networking, technical assistance, and access to investors. Further, Indian Business Incubators will promote collaboration, address challenges, and provide individually tailored services to overcome the obstacles that are unique to each participating business.
The OIED, previously referred to as the Office of Indian Energy and Economic Development (IEED), administers this grant program through the DED funded under a non-recurring appropriation budget. Congress appropriates funds on a year-to-year basis. Thus, while IBIP projects may extend over several years, funding for successive years beyond the original period of performance depends on each fiscal year's appropriations.
The projects awarded are expected to be for a project period of 36 months, with an option of an additional 36 months. The initial grant award will be for a 12-month budget period. The award continuation beyond each 12-month budget period will be subject to the availability of funds, satisfactory progress on the part of each recipient, and a determination that continued funding would be in the best interest of the Federal government. Neither the Department of the Interior (DOI) nor Indian Affairs will be held responsible for proposal or application preparation costs. Publication of this solicitation does not obligate DOI or Indian Affairs to award any specific grant or to obligate all or any part of available funds.
The Secretary, through the OIED, will solicit proposals for an IBIP grant from eligible entities that are able to provide the physical workspace, equipment, and connectivity necessary for Native businesses and Native entrepreneurs to collaborate and conduct business on a
• The following are eligible entities (2 CFR 1187.3):
○ An Indian Tribe;
Federally recognized Tribes listed as
○ Tribal College or University that will have been operational for not less than one year before receiving a grant under the IBIP;
Qualifies for funding under the Tribally Controlled Colleges and Universities Assistance Act of 1978 (25 U.S.C. 1801
Is cited in section 532 of the Equity in Educational Land-Grant Status Act of 1994 (7 U.S.C. 301 note).
○ An Institution of Higher Education that will have been operational for not less than one year before receiving a grant under the IBIP:
Admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate, or persons who meet the requirements of 20 U.S.C. 1091(d);
Is legally authorized within such State to provide a program of education beyond secondary education;
Provides an educational program for which the institution awards a bachelor's degree or provides not less than a two-year program that is acceptable for full credit toward such a degree, or awards a degree that is acceptable for admission to a graduate or professional degree program, subject to review and approval by the Secretary;
Is a public or other nonprofit institution; and
Is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted pre-accreditation status by such an agency or association that has been recognized by the Secretary for the granting of pre-accreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.
○ A Tribe or private nonprofit organization that provides business and financial technical assistance and;
Is a “Tribal Organization” as defined by 25 U.S.C. 5304(
Will have been operational for not less than one year before receiving a grant under the IBIP; and
Commits to serving one or more reservation communities.
○ Two or more eligible entities may submit a Joint Application, but:
All joint entities must submit certifications they are eligible as they combine resources and expertise at a physical location dedicated to assisting Native businesses and Native entrepreneurs under the IBIP, demonstrating that together they meet the requirements of 2 CFR 1187.13; and
The application must indicate which eligible entity will be the lead contact for the purposes of grant management.
Applicants must provide a certification that they are eligible to receive an IBIP grant, as well as designate an executive director or program manager to manage the business incubator. Applicants must submit the necessary documents per Section X. Mandatory Components, of this notice.
Applicants must include a description of the non-Federal contributions, in an amount equal to not less than 25 percent of the grant amount requested, or submit a waiver request. OIED may waive the requirement for the non-Federal contribution, in whole or in part, for one or more years of the initial IBIP grant award if OIED determines that the waiver is appropriate based on:
• The awardee's ability to provide non-Federal contributions;
• The quality of business incubation services; and
• The likelihood that one or more reservation communities served by the awardee will not receive similar services elsewhere because of the remoteness or other reasons that inhibit the provision of business and entrepreneurial development services.
In a non-competitive renewal, the Awardee must provide non-Federal contributions in an amount not less than 33 percent of the total amount of the grant. Failure to provide the non-Federal contribution will result in noncompliance and OIED withholding of funds, unless OIED waives the requirement under 25 CFR 1187.43.
Matching and cost-sharing requirements are discussed in 2 CFR 200.306. The primary recipient is responsible for the full amount of the non-Federal match proposed, including any amount provided by one or more third parties as listed on the Standard Form 424, Application for Federal Assistance. Whereas the full match contribution does not need to be in hand as of the date of the application, the application must provide commitments for the non-Federal contribution through the term of the grant. Applicants may meet the required non-Federal cost share or match through in-kind contributions, which must be necessary and reasonable for accomplishing the proposed project objective(s). The applicant must describe and attribute fair and equitable market value (2 CFR 200.306) to any in-kind match proposed in lieu of cash, which may include, but is not limited to:
• Not paid from, or sourced, from other Federal funds, programs or grants;
• Documented in project records and not be used as match in another grant;
• An allowable cost under 2 CFR 200 Subpart E—Cost Principles;
• Must occur within the period of performance of the award;
• Value of services and property donated as per 2 CFR 200.306, for instance;
○ Space as measured by the value of rent;
○ Materials and Equipment;
○ Donated Services and Technical Assistance;
Payroll or volunteer services from personnel working on the incubator who are not funded by IBIP, which must be well documented and supported per methods used for regular personnel costs;
• Contribution from a third party(ies) per 2 CFR 200.434. A third party is any individual or organization other than the eligible applicant, such as a partner, that is not receiving grant funds;
• Projected earnings through the term of the grant;
The applicant is subject to the procurement standards in 2 CFR 200.318 through 200.326. In accordance with 2 CFR 200.318, an applicant must use its own documented procurement procedures which reflect Tribal laws and regulations, provided that the procurements conform to applicable Federal law and standards identified in title 2 of the Code of Federal Regulations.
IBIP grant funding must be expended in accordance with applicable statutory and regulatory requirements, including 2 CFR part 200. As part of the grant application review process, OIED may conduct a review of an applicant's prior OIED grant awards(s).
Applicants that are currently under BIA sanction Level 2 or higher resulting from non-compliance with the Single Audit Act are ineligible for a IBIP award. Applicants at Sanction Level 1 will be considered for funding.
IBIP award funds may be used to provide physical workspace and facilities for Native businesses and Native entrepreneurs participating in the business incubator. Funds can be used to establish partnerships with other institutions and entities to provide comprehensive business incubation services to Native businesses and Native entrepreneurs participating in the business incubator, as well as for any other uses typically associated with business incubators that OIED determines to be appropriate and consistent with the purposes of the IBIP.
IBIP awards may not be used for:
• Indirect costs or administrative costs as defined by the Federal Acquisition Regulation (FAR);
• Supplemental employment, including fringe benefits, for current positions not significantly and directly involved in the proposed project;
• International travel;
• Outside Fees, Legal or Contract Negotiation fees, and application fees associated with permitting that are outside the scope of the grant award;
• Entertainment costs
○ For remote training/conferences locations (where eating establishments are not within a reasonable distance), food costs are allowable, but should not exceed the GSA meals and incidental costs per attendee for that location, not to exceed $5,000 for one event, and not more than twice in a calendar year;
○ Refreshments for non-remote training/conference locations are allowable for $5/attendee/day, not to exceed $1,000 per event,
○ All other food costs are disallowed;
○ However, travel stipends for training participants are allowed, including costs for meals which must follow the GSA Per Diem rates.
• Any other activities not authorized by the grant award letter.
All applications are required to be submitted in digital form to
The mandatory components, and forms identified below, must be included in each proposal package. Links to the mandatory forms can be found under the “package” tab on the IBIPFY2022 grant opportunity page at
• Category of Funding for the IBIP application.
• Proposal Title.
• Total Amount of funding requested from the Program, including matching amounts.
• Full and Proper Name of the applicant organization.
• Statement confirming the proposed work will have the potential to reach the intended goals and objectives.
• Confirm current registration in SAM, attaching print-out from
• Provide current ASAP Recipient ID with BIA. Allow 3-4 weeks to complete all steps of enrollment prior to submission deadline. The organization must be enrolled in ASAP with BIA, current enrollment with other federal agencies is not sufficient. See instructions and registration instructions in Appendix.
• Confirmation of other completed Mandatory Components identified in this section (SF-424, Project Abstract Summary, etc).
• Identification if partnerships such as Tribes, other Tribal Organizations or Entities. This is partnerships outside of a Joint Application.
• A certification that the applicant(s):
○ Is an eligible applicant; and
○ Has or will designate an executive director or program manager to manage the business incubator;
○ Agrees to:
A site evaluation by the Secretary as part of the final selection process;
An annual programmatic and financial examination for the duration of the grant; and
To the maximum extent practicable, to remedy any problems identified pursuant to the site evaluation and examination.
• A description of the one or more reservation communities to be served by the business incubator;
• A three-year plan that describes:
○ One-year milestone goals and objectives that coordinates with the identified budget periods.
○ The number of Native businesses and Native entrepreneurs to be participating in the business incubator, with goal setting of anticipated number of Native businesses starting, and the anticipated number of Native businesses to help maintain.
○ Whether the business incubator will focus on a particular type of business or industry.
○ A detailed breakdown of the services to be offered to Native
○ A detailed breakdown of the services, if any, to be offered to Native businesses and Native entrepreneurs not participating in the business incubator.
• Information demonstrating the effectiveness and experience of the eligible applicant in:
○ Conducting financial, management, and marketing assistance programs designed to educate or improve the business skills of current or prospective businesses;
○ Working in and providing services to Native American communities;
○ Providing assistance to entities conducting business in reservation communities;
○ Providing technical assistance under Federal business and entrepreneurial development programs for which Native businesses and Native entrepreneurs are eligible; and
○ Managing finances and staff effectively.
• A description of the applicant's non-Federal contributions, in an amount equal to not less than 25 percent of the grant amount requested; and
• A site description of the location at which the eligible applicant will provide physical workspace, including a description of the technologies, equipment, and other resources that will be available to Native businesses and Native entrepreneurs participating in the business incubator, if the applicant is in possession of the site, or a written site proposal containing the information in 2 CFR 1187.12, if the applicant is not yet in possession of the site.
• If the applicant is not yet in possession of the site, the applicant must submit a written site proposal with their application that contains:
○ Sufficient detail for the Secretary to ensure, in the absence of a site visit or video submission, that the proposed site will permit the eligible applicant to meet the requirements of the IBIP; and
○ A timeline describing when the eligible applicant will be:
In possession of the proposed site; and
Operating the business incubator at the proposed site.
Applicants must provide milestones and projected outcomes of their project(s) to demonstrate a successful outcome of the grant. The proposal should address grant awardee requirements:
• Awardee must:
○ Offer culturally tailored incubation services to Native businesses and Native entrepreneurs;
○ Use a competitive process for selecting Native businesses and Native entrepreneurs to participate in the business incubator; however, awardees may still offer technical assistance and advice to Native businesses and Native entrepreneurs on a walk-in basis;
○ Provide physical workspace that permits Native businesses and Native entrepreneurs to conduct business and collaborate with other Native businesses and Native entrepreneurs;
○ Provide entrepreneurship and business skills training and education to Native businesses and Native entrepreneurs including:
Financial education, including training and counseling in:
• Applying for and securing business credit and investment capital;
• Preparing and presenting financial statements; and
• Managing cash flow and other financial operations of a business;
Management education, including training and counseling in planning, organization, staffing, directing, and controlling each major activity or function of a business or startup; and
Marketing education, including training and counseling in:
• Identifying and segmenting domestic and international market opportunities;
• Preparing and executing marketing plans;
• Locating contract opportunities;
• Negotiating contracts; and
• Using varying public relations and advertising techniques.
○ Provide direct mentorship or assistance finding mentors in the industry in which the Native business or Native entrepreneur operates or intends to operate; and
○ Provide access to networks of potential investors, professionals in the same or similar fields, and other business owners with similar businesses.
• Each awardee must leverage technology to the maximum extent practicable to provide Native businesses and Native entrepreneurs with access to the connectivity tools needed to compete and thrive in 21st-century markets.
Additional items to consider:
• A description of the project objectives and goals for each of the 3 years;
• Deliverable products that the grant is expected to generate, including interim deliverables (such as status reports and technical data to be obtained) and final deliverables; and
• Resumes of key consultants and personnel to be retained, if available, and the names of subcontractors, if applicable. This information may be included as an attachment to the application and will not be counted towards the 50-page limitation.
• Please use a descriptive file name that includes Tribal name and project description. For example: IBIPNarrative.Tribalname.Project.
In addition, unless prohibited by Tribal procurement procedures, please include a description of any consultant(s) and partnership(s) the applicant wishes to retain, including their contact information, technical expertise, training, qualifications, and suitability. These documents may be included at the end of the Project Narrative and will not be counted toward the 50-page limitation.
Project Narratives are not judged based on their length. Please do not submit any unnecessary attachments or documents beyond what is listed above,
Applicants are required to submit a budget using the SF-424A form. Please use a descriptive file name that includes Tribal name and project description. For example: IBIPBudget.Tribalname.Project. When preparing budget information for the SF-424, applicants should plan to apply for funding in the range of $100,000-$300,000 a year for three years.
The budget must identify the amount of grant funding requested and a comprehensive breakdown of all projected and anticipated expenditures, including contracted personnel fees, consulting fees (hourly or fixed), travel costs, data collection and analysis costs, computer rentals, report generation, drafting, advertising costs for a proposed project and other relevant project expenses, and their subcomponents. Budget cost codes and items must be necessary and reasonable
• Administrative Costs associated with search, review and selection of external hires, including administrative support and supervision of liaison(s).
• Salary and Fringe Benefit costs that will be coordinated with OIED to ensure salary costs are reasonable and relatively consistent across the liaison network nationwide.
• Travel costs should be itemized by airfare, vehicle rental, lodging, and per diem, based on the current Federal government per diem schedule.
• Data collection and analysis costs should be itemized in sufficient detail for the OIED review committee to evaluate the charges.
• Other expenses may include computer rental, report generation, drafting, and advertising costs for a proposed project.
• Match requirements must also be documented, as outlined per Section VI. Required Non-Federal Contribution, of this notice.
Applicants are required to fully identify and document in their applications the specific costs or contributions they propose in order to meet a matching requirement. Applicants are also required to provide documentation in their applications on the sources of funding or contribution(s). In-kind contributions must be accompanied by a justification of how the stated valuation was determined. Matching or cost sharing must be documented by budget period (or by project period for fully funded award.
Applications that lack the required supporting documentation will not be disqualified from competitive review; however, it may impact an application's scoring under the evaluation criteria.
• Lead Applicant contact information including address, email, desk, and cell phone number;
• If there is more than one contact, please provide an additional key contacts form.
• Please use a descriptive file name that includes Tribal name and identifies that it is the critical information page (CIP). For example: IBIPCIP.Tribalname.Project.
• Please make sure that System for Award Management (SAM) number used to apply is active, not expired, with a current Unique Entity Identifier (EUI) number on the SF-424;
• Please make sure an
• Please list the county(ies) where the project is located and congressional district number(s) where the project is located.
Applications submitted without one or more of the mandatory components described above will be returned to the applicant with an explanation. The applicant will then be allowed to correct any deficiencies and resubmit the proposal for consideration on or before the deadline. This option will not be available to an applicant once the deadline has passed.
Upon receiving a IBIP application, OIED will determine whether the application is complete and that the proposed project does not duplicate or overlap previous or currently funded Federal or OIED projects. Any proposal that is received after the date and time in the
The OIED Review Committee, comprised of OIED staff, staff from other Federal agencies, and subject matter experts, will evaluate the proposals against the ranking criteria per Section XIII. Evaluation Criteria, of this notice. Proposals will be evaluated with a maximum achievable total of 100 points.
Final award selections will be approved by the Assistant Secretary—Indian Affairs and the Associate Deputy Secretary, U.S. Department of the Interior. Applicants not selected for award will be notified in writing.
Proposals will be formally evaluated by an OIED review committee using criteria listed below. Each criterion provides a percentage of the total maximum rating of 100 points. Key criteria that will be considered in the review process include:
• The ability of the eligible Applicant(s) to:
○ Operate a business incubator that effectively imparts entrepreneurship and business skills to Native businesses and Native entrepreneurs, as
○ Commence providing services within three months; and
○ Provide quality incubation services to a significant number of Native businesses and Native entrepreneurs or provide such services at geographically remote locations where quality business guidance and counseling is difficult to obtain;
• The experience of the eligible applicant in providing services in Native American communities, including in the one or more reservation communities described in the application;
• The extent to which a grant award will enable an entity that is already providing business incubation services to appreciably enhance those services; and
• The proposed location of the business incubator.
○ OIED will evaluated the location of the business incubator to:
Consider the program goal of achieving broad geographic distribution of business incubators; and
Give priority to eligible applicants that will provide business incubation services on or near the reservation of the one or more communities that were described in the application, except that OIED may give priority to an eligible applicant that is not located on or near the reservation of the one or more communities that were described in the application if OIED determines that:
• The location of the business incubator will not prevent the eligible applicant from providing quality business incubation services to Native businesses and Native entrepreneurs from the one or more reservation communities to be served; and
• Documenting that the business incubator in the identified location will serve the interests of the one or more reservation communities to be served.
○ OIED will conduct the site evaluation:
• Before awarding a grant to an eligible applicant, OIED will conduct an evaluation of the proposed site to verify that the applicant has (or will have) the physical workspace, equipment, and connectivity necessary for Native businesses and Native entrepreneurs to collaborate and conduct business on a local, regional, national, and/or international level.
• To determine whether the site meets the requirements of paragraph above:
○ If the applicant is in possession of the proposed site, OIED will conduct an on-site or virtual visit or review a video submission before awarding the grant.
○ If the applicant is not yet in possession of the proposed site and has submitted a written site proposal, OIED will review the written site proposal before awarding the grant and will conduct an on-site or virtual visit or review a video submission to ensure the site is consistent with the written site proposal no later than one year after awarding the grant. If OIED determines the site is not consistent with the written site proposal, OIED will use that information in determining the ongoing eligibility of the applicant under § 1187.50.
Points will be awarded based on the applicant's description of how they will operate a business incubator that will effectively impart entrepreneurship and business skills to Native businesses and Native entrepreneurs, as demonstrated by the experience and qualifications of the eligible applicant. Milestone goals and objectives and outcomes of the project proposal should outline the success parameters and deliverables of the incubator through the term of the grant, see Section X. Mandatory Components, of this notice.
The Applicant proposal must demonstrate the ability for the incubator to begin providing services within three months from the date of award.
Points will be awarded based on the Applicant's ability to provide quality incubation services to a significant number of Native businesses and Native entrepreneurs or provide such services at geographically remote locations where quality business guidance and counseling are difficult to obtain. “Significant” will be considered the relative quality incubation services provided to the number of Native businesses and Native entrepreneurs in the proposal to the overall amount of funding requested. Identified goal(s) of the anticipated number of Native businesses starting, and the anticipated number of Native businesses help maintaining.
The Applicant will have broad discretion in determining what structure their competitive process will be in selecting participants into their incubator program. They will also determine appropriate curriculum, training and program completion requirements that determine participant “graduation.”
The Applicant's proposal must demonstrate experience in providing services in Native American communities. Applicants have flexibility in who they identify to serve, which must identify one or more reservation communities, regardless if the communities are near their own Tribe's homelands. Applicant must demonstrate they are serving a diverse population and include justifications around socioeconomic factors and considerations related to size and location, often to geographically remote locations where quality business guidance and counseling is difficult to obtain. Applicants may see Regional and diverse market representation across Indian Country.
Applicant must have a location secured that provides physical space to its participating businesses. Whereas the applicant does not have to be in possession of the proposed site at the time of application, it must be secured as soon as services are provided.
Points will be awarded based on the reasonableness of the proposed IBIP project in view of the types and range of activities to be conducted and the expected outcomes and benefits. The application includes a strong plan for oversight of federally awarded funds and activities. In particular, the application describes the rules and procedures in place to ensure the prudent use, proper disbursement, and accurate accounting of funds. The budget includes expenses for travel and accommodation costs for two IBIP representatives to attend the 1
OIED's obligation under this solicitation is contingent on receipt of congressionally appropriated funds. No liability on the part of the U.S. Government for any payment may arise until funds are made available to the awarding officer for this grant and until the recipient receives notice of such availability, to be confirmed in writing by the grant officer.
All payments under this agreement will be made by electronic funds transfer through the ASAP system. All award recipients are required to have a current and accurate UEI number to receive funds. All payments will be deposited to the banking information designated by the Bureau of Indian Affairs in the SAM.
OIED will disburse grant funds awarded to eligible applicants in annual installments except that, OIED may make disbursements more frequently, on request by the applicant, as long as disbursements are not made more frequently than quarterly. IBIP grant awards may not be duplicative of existing Federal funding from another source that overlaps funding for the same activities described in the Applicant's proposal.
The applicant must deliver all products and data required by the signed Grant Agreement for the proposed IBIP grant to OIED within 30 days of the end of each reporting period and 120 days after completion of the project. The reporting periods will be established in the terms and conditions of the final award. IBIP will require yearly cumulative financial reporting per a SF-425. IBIP will require annual Performance reporting, which will be used to conduct annual grantee evaluations towards renewal determinations, as well as final reports due at the end of the 3-year term.
The Performance Report will include:
• Not later than one year after the date OIED awards the grant, and then annually for the duration of the grant, the awardee must submit to OIED a report describing the services the awardee provided under the IBIP during the preceding year, including:
○ A detailed breakdown of the Native businesses and Native entrepreneurs receiving services from the business incubator, including, for the year covered by the report:
The number of Native businesses and Native entrepreneurs participating in or receiving services from the business incubator and the types of services provided to those Native businesses and Native entrepreneurs;
The number of Native businesses and Native entrepreneurs established and jobs created or maintained; and
The number of Native businesses and Native entrepreneurs maintained; and
The performance of Native businesses and Native entrepreneurs while participating in the business incubator and after graduation or departure from the business incubator; and
○ Any other information the Secretary may require to evaluate the performance of a business incubator to ensure appropriate implementation of the IBIP.
• To the maximum extent practicable, OIED will not require an awardee to report the information listed above that the awardee provides to OIED under another program.
• OIED will coordinate with the heads of other Federal agencies to ensure that, to the maximum extent practicable, the report content and form above are consistent with other reporting requirements for Federal programs that provide business and entrepreneurial assistance.
Annual Evaluations will measure successful outcomes of the grant based on the identified milestones and outcomes from the incubator project application, as well as identified deliverables. OIED will measure performance of an awardee's business incubator as it compares to the performance of other business incubators receiving grants under IBIP. The reporting function will not require detailed capital investments and revenue growth information, instead it will focus on the total number of Native businesses and entrepreneurs the incubator assists and their performance while participating and after graduation or departure from the incubator.
OIED oversight reporting is tracking grant funding only, not incubator activities. Proper justification and use of grant funds in the application and through the term of the grant are required. Release of business and entrepreneur financial disclosures, that may deter participation in the program, will not be required. Equity created from the program should be reinvested back into the program by mentoring and sharing best practices with other businesses.
OIED requires that deliverable products be provided in digital format and submitted in the GrantSolutions system. Reports can be provided in either Microsoft Word or Adobe Acrobat PDF format. Spreadsheet data can be provided in Microsoft Excel, Microsoft Access, or Adobe PDF formats. All vector figures should be converted to PDF format. Raster images can be provided in PDF, JPEG, TIFF, or any of the Windows metafile formats. The contract between the grantee and the consultant conducting the IBIP grant must include deliverable products and require that the products be prepared in the format described above.
The contract should include budget amounts for all printed and digital copies to be delivered in accordance with the grant agreement. In addition, the contract must specify that all products generated by a consultant belong to the grantee and cannot be released to the public without the grantee's written approval. Products include, but are not limited to, all reports and technical data obtained, maps, status reports, and the final report.
In addition, this funding opportunity and financial assistance award must adhere to the following provisions in Section XVI Conflicts of Interest through Section XIX Authority.
• This section intends to ensure that non-Federal entities and their employees take appropriate steps to avoid conflicts of interest in their responsibilities under or with respect to Federal financial assistance agreements.
• In the procurement of supplies, equipment, construction, and services by recipients and by sub-recipients, the conflict of interest provisions in 2 CFR 200.318 apply.
• Non-Federal entities must avoid prohibited conflicts of interest, including any significant financial interests that could cause a reasonable person to question the recipient's ability to provide impartial, technically sound, and objective performance under or with respect to a Federal financial assistance agreement.
• In addition to any other prohibitions that may apply with respect to conflicts of interest, no key official of an actual or proposed recipient or sub-recipient, who is substantially involved in the proposal or project, may have been a former Federal employee who, within the last one (1) year, participated personally and substantially in the evaluation, award, or administration of an award with respect to that recipient or sub-recipient or in development of the requirement leading to the funding announcement.
• No actual or prospective recipient or sub-recipient may solicit, obtain, or use non-public information regarding the evaluation, award, administration of an award to that recipient or sub-recipient or the development of a Federal financial assistance opportunity that may be of competitive interest to that recipient or sub-recipient.
• Non-Federal entities, including applicants for financial assistance awards, must disclose in writing any conflict of interest to the DOI awarding agency or pass-through entity in accordance with 2 CFR 200.112, Conflicts of Interest.
• Recipients must establish internal controls that include, at a minimum, procedures to identify, disclose, and mitigate or eliminate identified conflicts of interest. The recipient is responsible for notifying the Financial Assistance Officer in writing of any conflicts of interest that may arise during the life of the award, including those that have been reported by sub-recipients.
• Restrictions on Lobbying. Non-Federal entities are strictly prohibited from using funds under this grant or cooperative agreement for lobbying activities and must provide the required certifications and disclosures pursuant to 43 CFR part 18 and 31 U.S.C. 1352.
• Review Procedures. The Financial Assistance Officer will examine each conflict of interest disclosure on the basis of its particular facts and the nature of the proposed grant or cooperative agreement, and will determine whether a significant potential conflict exists and, if it does, develop an appropriate means for resolving it.
• Enforcement. Failure to resolve conflicts of interest in a manner that satisfies the Government may be cause for termination of the award. Failure to make the required disclosures may result in any of the remedies described in 2 CFR 200.338, Remedies for Noncompliance, including suspension or debarment (see also 2 CFR part 180).
• Applicability. The Department of the Interior is committed to basing its decisions on the best available science and providing the American people with enough information to thoughtfully and substantively evaluate the data, methodology, and analysis used by the Department to inform its decisions.
• Use of Data. The regulations at 2 CFR 200.315 apply to data produced under a Federal award, including the provision that the Federal Government has the right to obtain, reproduce, publish, or otherwise use the data produced under a Federal award as well as authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes.
• Availability of Data. The recipient shall make the data produced under this award and any subaward(s) available to the Government for public release, consistent with applicable law, to allow meaningful third-party evaluation and reproduction of the following:
○ The scientific data relied upon;
○ The analysis relied upon; and
○ The methodology, including models, used to gather and analyze data.
OIED staff may provide technical consultation, upon written request by an applicant. The request must clearly identify the type of assistance sought. Technical consultation does not include funding to prepare a grant proposal, grant writing assistance, or pre-determinations as to the likelihood that a proposal will be awarded. The applicant is solely responsible for preparing its grant proposal. Technical consultation may include clarifying application requirements, confirming whether an applicant previously submitted the same or similar proposal, and registration information for SAM or ASAP.
The information collection requirements contained in this notice have been reviewed and approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3504(h). The OMB control number is 4040-0004. The authorization expires on December 31, 2022. An agency may not conduct or sponsor, and Applicant is not required to respond to, any information collection that does not display a currently valid OMB Control Number.
This is a discretionary grant program authorized under the Native American Business Incubators Program Act, Public Law 116-174, codified at 25 U.S.C. 5801. The IBIP, also known as the Native American Business Incubator's Program, is a program in which OIED provides competitive grants to eligible applicants to establish and operate business incubators that serve Tribal reservation communities. Congress enacted the Native American Business Incubators Program and required the Secretary to promulgate regulations to implement the program, see 25 U.S.C. 5804. The regulations are codified at 25 CFR part 1187 and provide the framework for operation of the grant program so that there is certainty as to who is eligible for a grant, how eligible applicants can apply for a grant, how OED will evaluate, award and administer the grants, and what terms and conditions will apply to the grants. The Final Rule enabled OED to provide grants that will stimulate economic development in reservation communities.
National Park Service, Interior.
Notice.
The Florence Indian Mound Museum has completed an inventory of human remains 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 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 should submit a written request to the Florence Indian Mound Museum. If no additional requestors come forward, transfer of control of the human remains 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 should submit a written request with information in support of the request to the Florence Indian Mound Museum at the address in this notice by April 22, 2022.
Brian Murphy, Florence Arts and Museums, 217 E Tuscaloosa Street, Florence, AL 35630, telephone (716) 570-5613, email
Notice is here given in accordance with the
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. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Florence Indian Mound Museum professional staff in consultation with representatives of the Alabama-Coushatta Tribe of Texas [
Sometime in the 1970s, human remains representing, at minimum, one individual were removed from Lauderdale County, AL. In December of 2019, the human remains were brought to the Kennedy-Douglass Center for the Arts by a man who claimed that his friend had removed the human remains from an unidentified site in Lauderdale County in the 1970s. The human remains—two tibia, one mandible, two parietal bones, one scapula, one radius, one ulna, one humerus, one thoracic bone, one rib, and one occipital bone—belong to an individual of unknown age and sex. No known individual was identified. No associated funerary objects are present.
Officials of the Florence Indian Mound Museum have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on consultation with Katie Fillers, Tennessee Valley Authority archeological contractor.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of, at minimum, one individual of Native American ancestry.
• 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 any present-day Indian Tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of Absentee-Shawnee Tribe of Indians of Oklahoma; Alabama-Coushatta Tribe of Texas [
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of The Tribes.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to The Tribes.
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 should submit a written request with information in support of the request to Brian Murphy, Florence Arts and Museums, 217 E. Tuscaloosa Street, Florence, AL 35630, telephone (716) 570-5613, email
The Florence Indian Mound Museum is responsible for notifying The Consulted Tribes and The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, Bureau of Indian Affairs (BIA), 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 a cultural affiliation between the human remains and associated funerary objects and present-day Indian Tribes or Native Hawaiian organizations. 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 to the BIA. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects 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 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 BIA at the address in this notice by April 22, 2022.
Dr. BJ Howerton, NAGPRA Coordinator, Bureau of Indian Affairs, 1001 Indian School Road NW, Room 341, Albuquerque, NM 87104, telephone (505) 563-3013, 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 U.S. Department of the Interior, Bureau of Indian Affairs, Washington, DC, and in the physical custody of the Arizona State Museum (ASM), University of Arizona, Tucson, AZ. The human remains and associated funerary objects were removed from locations within the
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.
A detailed assessment of the human remains was made by ASM and BIA professional staff in consultation with representatives of the Hopi Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; and the Zuni Tribe of the Zuni Reservation, New Mexico (hereafter referred to as “The Consulted Tribes”).
Between 1963 and 1977, two cultural items were removed from site AZ P:14:1(ASM), also known as the Grasshopper Pueblo, in Navajo County, AZ. The items were removed during legally authorized excavations conducted by the University of Arizona Archeological Field School. Archeological collections from the site were brought to ASM at the end of each field season and accessioned. The two associated funerary objects are textile fragments.
Site AZ P:14:1(ASM) is a large village site containing approximately 500 rooms in more than a dozen stone room blocks arranged around three main plazas. The site has been dated A.D. 1275-1400 based on tree ring dates, architectural forms, building technology, and ceramic styles. These characteristics, as well as the mortuary pattern and other items of material culture, are consistent with the archeologically described Upland Mogollon or prehistoric Western Pueblo tradition.
In the summers of 1939 and 1940, human remains representing, at minimum, two individuals were removed from site AZ P:16:1(ASM), also known as Bear Ruin, in Navajo County, AZ. These excavations were legally authorized and carried out by Emil Haury under the auspices of ASM and the Department of Anthropology at the University of Arizona. Archeological collections from Haury's excavations, including human remains and associated funerary objects, were brought to ASM at the end of each field season. The human remains (designated as “F.B. 05” and “F.B. 07”) belong to two adults of indeterminate sex. No known individuals were identified. The three associated funerary objects are one turquoise pendant, one ceramic sherd, and one bone awl.
Site AZ P:16:1(ASM) consists of 14 houses, two storage rooms, and a kiva. The site has been dated A.D. 600-800 based on ceramic styles, architectural forms, and tree-ring data. These characteristics, as well as the mortuary pattern and other items of material culture, are consistent with the Mogollon archeological tradition.
In the summers of 1940 and 1941, human remains representing, at minimum, one individual were removed from site AZ P:16:2(ASM), also known as Tla Kii, in Navajo County, AZ. These excavations were legally authorized and carried out by Emil Haury under the auspices of ASM and the Department of Anthropology at the University of Arizona. Archeological collections from Haury's excavations, including human remains, were brought to ASM at the end of each field season. The skull of this individual was retained by a student, Mr. Langenwalter, who worked under Haury. The human remains were in the custody of Mr. Langenwalter's family until 2007, when his daughter contacted ASM to transfer the remains. The human remains most likely belong to a mature adult male. No known individual was identified. No associated funerary objects are present.
Site AZ P:16:2(ASM) consists of three pit houses, one storage structure, two structures, a main pueblo, two kivas, and 14 storage pits. Based on architectural forms and ceramic styles, along with other items of material culture, the site is dated A.D. 900-1200 and is associated with the Mogollon archeological tradition.
In the summers of 1941 and 1944, human remains representing, at minimum, one individual were removed from site AZ P:16:20(ASM), also known as Bluff Site, in Navajo County, AZ. These excavations were legally authorized and carried out by Emil Haury under the auspices of ASM and the Department of Anthropology at the University of Arizona. Archeological collections from Haury's excavations, including human remains, were brought to ASM at the end of each field season. The fragmentary human remains (designated as “Grid E5, burial 1”) most likely belong to a juvenile or older individual of indeterminate sex. No known individual was identified. No associated funerary objects are present.
Site AZ P:16:20(ASM) comprises a pit house village belongs to the Cottonwood and Hilltop phases of the Mogollon archeological culture. It is dated A.D. 200-600 based on architectural forms and tree-ring samples.
In the summer of 1966, human remains representing, at minimum, 18 individuals were removed from site AZ P:16:62(ASM), also known as Skiddy Canyon Ruin, in Navajo County, AZ. These excavations, led by Laurens Hammack of ASM in conjunction with ASM and the Museum of Northern Arizona, were legally authorized and carried out as part of the Highway Salvage program of the Arizona Highway Department (project no. F-026-1[17]). Archeological collections from these excavations were sent to ASM in March of 1967; the remains of one of the individuals were sent to ASM in March of 1979. The human remains are designated “burial 01, feature 6,” an infant; “burial 02, feature 14,” a young adult female; “burial 03, feature 17,” an adult of indeterminate sex; “burial 04, feature 18,” an adult male; “burial 05, feature 19,” a mature adult female; “burial 06, feature 21,” a mature adult of indeterminate sex; “burial 07, feature 22,” a mature adult male; “burial 09, feature 24,” a mature adult female; “burial 10, feature 20,” an adult male; “Feature 0 (General Surface),” an adult of indeterminate sex; “Feature 1,” an adult of indeterminate sex; “Floor against S. wall of Feature 16,” an adult of indeterminate sex; “from fill of Feature 12,” an adult of indeterminate sex; “from ventilator fill of Feature 15,” an adult of indeterminate sex; “general fill of feature 20 (Kiva),” an adult of indeterminate sex; “general fill of Feature 4 (3811),” a juvenile or older of indeterminate sex; “general fill of Feature 4 (3394),” an adult of indeterminate sex; “burial 11,” a mature adult male. No known individuals were identified. The 13 associated funerary objects are one jar, four bowls, two stone fragments, one worked faunal bone, one projectile point, two shell beads, one pitcher, and one shell bracelet fragment.
Site AZ P:16:62(ASM) consists of a pit house, kiva, an eight-room pueblo, and associated trash areas. Based on architectural forms and ceramic styles, along with other cultural materials, the site dates A.D. 600-1200 and is associated with the Mogollon archeological tradition.
Between 1931 and 1939, human remains representing, at minimum, one individual were removed from site AZ V:4:1, also known as Kinishba, in Gila County, AZ. Excavations at this time were legally authorized and were directed by Byron Cummings under the auspices of ASM and the Department of Anthropology at the University of Arizona. No known individuals were
Archeological collections from the 1931-1939 excavations were brought to ASM, where they were assigned number AP-CU. On January 1, 1936, additional cultural remains sent from the Western Archaeological and Conservation Center (WACC) to ASM were assigned number AP-40. In 1941 and 1952, ASM loaned collections from site AZ V:4:1 to the Kinishba Museum, to be used for exhibits at the site. On July 24, 1956, following reports of disrepair and vandalism at the Kinishba Museum, these collections were moved back to ASM. On September 22, 1958, Emil Haury made plans to move archeological and museum collections from AZ V:4:1 to the Southwest Archaeological Center (SWAC) in Globe, AZ, in anticipation of a proposed National Monument at the site. On February 5, 1969, the collections housed at SWAC were returned to ASM when it became clear that Kinishba National Monument would not be created. Collection items from this transfer were assigned number AP-2118. On January 1, 1938, August 10, 1953, and February 23, 2003, additional archeological materials from this site were found in ASM collections and were assigned numbers AP-45, AP-647, and AP-CU respectively.
Site AZ V:4:1 is a large, plaza-oriented pueblo containing more than 600 rooms arranged in eight masonry room groups on both sides of a drainage running through the site. It was occupied between around A.D. 1225 and 1450, based on tree-ring dates, architectural forms, building technology, and ceramic styles. These characteristics, as well as the mortuary patterns and other items of material culture recovered at this site, are consistent with the archeologically described Upland Mogollon or prehistoric Western Pueblo tradition.
A detailed discussion on culturally affiliating the archeological sites in this region may be found in
Hopi and Zuni oral traditions parallel the archeological evidence for migration. Migration figures prominently in Hopi oral tradition, which refers to the ancient sites, pottery, stone tools, petroglyphs, and other artifacts left behind by the ancestors as “Hopi Footprints.” This migration history is complex and detailed. It includes traditions relating specific clans to the Mogollon region. Hopi cultural advisors have also identified medicinal and culinary plants at archeological sites in the region. Their knowledge about these plants was passed down to them from the ancestors who inhabited these ancient sites. Migration is also an important attribute of Zuni oral tradition and includes accounts of Zuni ancestors passing through the Upland Mogollon region. The ancient villages mark the routes of these migrations. Zuni cultural advisors remark that the ancient sites were not abandoned. People returned to these places from time to time, either to reoccupy them or for religious pilgrimages—a practice that has continued to the present day. Archeologists have found ceramic evidence at shrines in the Upland Mogollon region that confirms these reports. Zuni cultural advisors have names for plants endemic to the Mogollon region that do not grow on the Zuni Reservation. They also have knowledge about traditional medicinal and ceremonial uses for these resources, which has been passed down to them from their ancestors. Furthermore, Hopi and Zuni cultural advisors have recognized that their ancestors may have been co-resident at some of the sites in this region during their ancestral migrations.
There are differing points of view regarding the possible presence of Apache people in the Upland Mogollon region during the time that the above sites were occupied. Some Apache traditions describe interactions with Ancestral Puebloan people during this time, but according to these stories, Puebloan people and Apache people were regarded as having separate identities. The White Mountain Apache Tribe of the Fort Apache Reservation, Arizona, does not claim cultural affiliation with the human remains and associated funerary objects from these sites.
Officials of the U.S. Department of the Interior, Bureau of Indian Affairs have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 23 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 18 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), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Hopi Tribe of Arizona and the Zuni Tribe of the Zuni Reservation, New Mexico (hereafter referred to as “The Tribes”).
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 Dr. BJ Howerton, NAGPRA Coordinator, Bureau of Indian Affairs, 1001 Indian School Road NW, Room 341, Albuquerque, NM 87104, telephone (505) 563-3013, email
The U.S. Department of the Interior, Bureau of Indian Affairs with assistance of the Arizona State Museum is responsible for notifying The Consulted Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Department of the Interior has submitted a nomination to the World Heritage List for the “Hopewell Ceremonial Earthworks,” consisting of eight properties in Ohio, five of which are in Hopewell Culture National Historical Park in Ross County: Hopeton Earthworks, Mound City, High Bank Works, Hopewell Mound Group and Seip Earthworks; and three that are National Historic Landmarks: Fort Ancient in Licking County, owned by the State of Ohio, and the Octagon Earthworks and Great Circle Earthworks in Warren County, owned by the state-chartered Ohio History Connection. This is the third notice required by the Department of the Interior's World Heritage Program regulations.
To request paper copies of documents discussed in this notice, contact April Brooks, Office of International Affairs, National Park Service, 1849 C St. NW, Room 2415, Washington, DC 20240 (202) 354-1808, or sending electronic mail (Email) to:
Stephen Morris, Chief, Office of International Affairs at (202) 354-1803 or Jonathan Putnam, International Cooperation Specialist, at (202) 354-1809. Complete information about U.S. participation in the World Heritage Program and the process used to develop the U.S. World Heritage Tentative List is posted on the National Park Service, Office of International Affairs website at:
This constitutes the official notice of the decision by the United States Department of the Interior to submit a nomination to the World Heritage List for the “Hopewell Ceremonial Earthworks,” as enumerated in the Summary above, and serves as the Third Notice referred to in 36 CFR 73.7(j) of the World Heritage Program regulations (36 CFR part 73).
The nomination was submitted through the U.S. Department of State to the World Heritage Centre of the United Nations Educational, Scientific and Cultural Organization (UNESCO) for consideration by the World Heritage Committee, which will likely occur at the Committee's 46th annual session in mid-2023.
This property has been selected from the U.S. World Heritage Tentative List, which comprises properties that appear to qualify for World Heritage status and which may be considered for nomination by the United States to the World Heritage List, as required by the World Heritage Committee's Operational Guidelines.
The U.S. World Heritage Tentative List appeared in a
In making the decision to submit this U.S. World Heritage nomination, pursuant to 36 CFR 73.7(h) and (i), the Department's Assistant Secretary for Fish and Wildlife and Parks evaluated the draft nomination and the recommendations of the Federal Interagency Panel for World Heritage. She determined that the property meets the prerequisites for nomination by the United States to the World Heritage List that are detailed in 36 CFR part 73. The properties are nationally significant, being part of a unit of the National Park System established by Act of Congress or having been designated by the Department of the Interior as individual National Historic Landmarks. The owners of the properties have concurred in writing with the nomination, and each property is well protected legally and functionally as documented in the nomination. It appears to meet two of the World Heritage criteria for cultural properties.
The “Hopewell Ceremonial Earthworks” are nominated under World Heritage cultural criteria (i) and (iii), as provided in 36 CFR 73.9(b)(1), as a group, or “series,” that collectively appears to justify criterion (i) by demonstrating a masterpiece of human creative genius: A 2,000-year-old series of precise squares, circles, and octagons and a hilltop sculpted to enclose a vast plaza. They were built on an enormous scale and the geometric forms are consistently deployed across great distances and encode alignments with both the sun's cycles and the far more complex patterns of the moon. The series also justifies criterion (iii) in providing testimony to its builders, people now referred to as the Hopewell Culture: Dispersed, non‐hierarchical groups whose way of life was transitioning from foraging to farming. The earthworks were the center of a continent‐wide sphere of influence and interaction and have yielded exceptionally finely crafted ritual objects fashioned from raw materials obtained from distant places. The properties, both individually and as a group, also meet the World Heritage requirements for integrity and authenticity.
The World Heritage List is an international list of cultural and natural properties nominated by the signatories to the World Heritage Convention (1972). The World Heritage Committee, composed of representatives of 21 nations elected as the governing body of the World Heritage Convention, makes the final decisions on which nominations to accept on the World Heritage List at its annual meeting each summer. Although the United States is not a member of UNESCO, it continues to participate in the World Heritage Convention, which is an independent treaty. There are 1,154 World Heritage sites in 167 of the 194 signatory countries. The United States has 24 sites inscribed on the World Heritage List.
U.S. participation and the role of the Department of the Interior are authorized by title IV of the National Historic Preservation Act Amendments of 1980, Public Law 96-515, 94 Stat. 2987, 3000, codified as amended at 54 U.S.C. 307101, and conducted by the Department through the National Park Service in accordance with the regulations at 36 CFR part 73 which implement the Convention pursuant to the 1980 Amendments.
Neither inclusion in the Tentative List nor inscription as a World Heritage Site imposes legal restrictions on owners or neighbors of sites, nor do they give the United Nations any management authority or ownership rights in U.S. World Heritage Sites, which continue to be subject only to U.S. federal and local laws, as applicable.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, Bureau of Indian Affairs (BIA), 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 the BIA. 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 BIA at the address in this notice by April 22, 2022.
Dr. BJ Howerton, NAGPRA Coordinator, Bureau of Indian Affairs, 1001 Indian School Road NW, Room 341, Albuquerque, NM 87104, telephone (505) 563-3013, 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 U.S. Department of the Interior, Bureau of Indian Affairs, Washington, DC, and in the physical custody of the Arizona State Museum, University of Arizona, Tucson, AZ (ASM), 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.
Between 1963 and 1977, 40 cultural items were removed from site AZ P:14:1(ASM), also known as the Grasshopper Pueblo, in Navajo County, AZ. The items were removed during legally authorized excavations conducted by the University of Arizona Archeological Field School. Archeological collections from the site were brought to ASM at the end of each field season and accessioned. The 40 unassociated funerary objects are 39 tree ring samples and one piece of mineral pigment.
Site AZ P:14:1(ASM) is a large village site containing approximately 500 rooms in more than a dozen stone room blocks arranged around three main plazas. The site has been dated to A.D. 1275-1400 based on tree ring dates, architectural forms, building technology, and ceramic styles. These characteristics, the mortuary pattern, and other items of material culture are consistent with the archeologically described Upland Mogollon or prehistoric Western Pueblo tradition.
In the summers of 1939 and 1940, 136 cultural items were removed from site AZ P:16:1(ASM), also known as Bear Ruin, in Navajo County, AZ. These excavations were legally authorized and carried out by Emil Haury under the auspices of ASM and the Department of Anthropology at the University of Arizona. Archeological collections from Haury's excavations were brought to ASM at the end of each field season and accessioned. The 136 unassociated funerary objects are one bone awl, two bone awl fragments, one incised bone, 39 ceramic bowls, one ceramic canteen, one ceramic disc, five ceramic vessel fragments, one human figurine fragment, 25 ceramic jars, six miniature vessels, seven ceramic pitchers, eight sherds, 18 pieces of mineral concretion or pigment, one piece of unfired clay, two turquoise beads, three turquoise pendants, 14 shell bracelet fragments, and one shell necklace.
Site AZ P:16:1(ASM) consists of 14 houses, two storage rooms, and a kiva. The site has been dated to A.D. 600-800 based on ceramic styles, architectural forms, and tree-ring data. These characteristics, the mortuary pattern, and other items of material culture are consistent with the Mogollon archeological tradition.
In the summers of 1940 and 1941, 63 cultural items were removed from site AZ P:16:2(ASM), also known as Tla Kii, in Navajo County, AZ. These excavations were legally authorized and carried out by Emil Haury under the auspices of ASM and the Department of Anthropology at the University of Arizona. Archeological collections from Haury's excavations were brought to ASM at the end of each field season and accessioned. The 63 unassociated funerary objects are 32 ceramic bowls, one ceramic canteen, three ceramic vessel fragments, one human figurine fragment, seven ceramic jars, one miniature vessel, three ceramic pitchers, one ceramic plate, one ceramic scoop, one ceramic scraper, one sherd, two lithic scrapers, one piece of mineral concretion, six lots of stone beads, and two turquoise pendants.
Site AZ P:16:2(ASM) consists of three pit houses, one storage structure, two other structures, a main pueblo, two kivas, and 14 storage pits. Based on architectural forms and ceramic styles, along with other items of material culture, the site is dated to A.D. 900-1200, and it is associated with the Mogollon archeological tradition.
In the summers of 1941 and 1944, one cultural item was removed from site AZ P:16:20(ASM), also known as Bluff Site, in Navajo County, AZ. These excavations were legally authorized and carried out by Emil Haury under the auspices of ASM and the Department of Anthropology at the University of Arizona. Archeological collections from Haury's excavations were brought to ASM at the end of each field season. Collections were not accessioned upon receipt at ASM; an accession of “none 1940s” was later assigned. The one unassociated funerary object is a ceramic bowl.
Site AZ P:16:20(ASM) comprises a pit house village dating to the Cottonwood and Hilltop phases of the Mogollon archeological culture, and it dates to A.D. 200-600 based on architectural forms and tree-ring samples.
In the summer of 1966, three cultural items were removed from site AZ P:16:62(ASM), also known as Skiddy Canyon Ruin, in Navajo County, AZ. These excavations were legally authorized and were carried out in conjunction with the ASM and the Museum of Northern Arizona under the direction of Laurens Hammack of ASM as part of the Highway Salvage program of the Arizona Highway Department (project no. F-026-1[17]). Archeological collections from these excavations were transferred to ASM in March of 1967. The three unassociated funerary objects are one ceramic pitcher, one ceramic jar, and one shell bead.
Site AZ P:16:62(ASM) consists of a pit house, kiva, eight-room pueblo, and associated trash areas. Based on architectural forms and ceramic styles, along with other items of cultural belongings, the site dates to A.D. 600-1200, and it is associated with the Mogollon archeological tradition.
A detailed discussion of the basis for cultural affiliation of archeological sites in the region where the above sites are located may be found in “
Hopi and Zuni oral traditions parallel the archeological evidence for migration. Migration figures prominently in Hopi oral tradition, which refers to the ancient sites, pottery, stone tools, petroglyphs, and other artifacts left behind by the ancestors as “Hopi Footprints.” This complex and detailed migration history includes traditions that relate specific clans to the Mogollon region. Hopi cultural advisors have also identified medicinal and culinary plants at archeological sites in the region. According to them, knowledge about these plants had been passed down from the ancestors who inhabited these ancient sites. Migration is also an important attribute of Zuni oral tradition. That tradition includes accounts of Zuni ancestors passing through the Upland Mogollon region. The ancient villages mark the routes of these migrations. According to Zuni cultural advisors, the ancient sites were not abandoned. Rather, people returned to them from time to time, either for the purpose of reoccupying them or for religious pilgrimages—a practice that has continued to the present day. Archeologists have found ceramic evidence at shrines in the Upland Mogollon region that confirms these reports. Zuni cultural advisors have names for plants endemic to the Mogollon region that do not grow on the Zuni Reservation. They also have knowledge about traditional medicinal and ceremonial uses for these resources, which has been passed down to them from their ancestors. Furthermore, Hopi and Zuni cultural advisors have recognized that their ancestors may have been co-resident at some of the sites in this region during their ancestral migrations.
There are differing points of view regarding the possible presence of Apache people in the Upland Mogollon region during the time that these sites were occupied. Some Apache traditions describe interactions with Ancestral Pueblo people during this time, but according to these stories, Puebloan people and Apache people were regarded as having separate identities. The White Mountain Apache Tribe of the Fort Apache Reservation, Arizona does not claim to be culturally affiliated with the human remains and associated funerary objects from this site. As reported by Welch and Ferguson (2005), consultations between the Pueblo of Acoma, New Mexico; Pueblo of Laguna, New Mexico; Navajo Nation, Arizona, New Mexico, & Utah; and the White Mountain Apache Tribe of the Fort Apache Reservation, Arizona have indicated that none of these Indian Tribes wishes to assert a cultural affiliation with sites on White Mountain Apache Tribal lands. Finally, the White Mountain Apache Tribe of the Fort Apache Reservation, Arizona supports the repatriation of any human remains and associated funerary objects from these sites, and it is ready to assist the Hopi Tribe of Arizona and Zuni Tribe of the Zuni Reservation, New Mexico in their reburial.
Officials of the U.S. Department of the Interior, Bureau of Indian Affairs have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the 243 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 Hopi Tribe of Arizona and the Zuni Tribe of the Zuni Reservation, New Mexico (hereafter referred to as “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 Dr. BJ Howerton, NAGPRA Coordinator, Bureau of Indian Affairs, 1001 Indian School Road NW, Room 341, Albuquerque, NM 87104, telephone (505) 563-3013, email
The U.S. Department of the Interior, Bureau of Indian Affairs, with the assistance of the Arizona State Museum,
On the basis of the record
The Commission instituted these reviews on August 2, 2021 (86 FR 41511) and determined on November 5, 2021 that it would conduct expedited reviews (87 FR 7498, February 9, 2022).
The Commission made these determinations pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)). It completed and filed its determinations in these reviews on March 17, 2022. The views of the Commission are contained in USITC Publication 5297 (March 2022), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission (“Commission”) has determined to affirm the presiding administrative law judge (“ALJ's”) initial determination (“ID”) (Order No. 33) finding a violation of section 337 of the Tariff Act of 1930, as amended, in this investigation and has issued a general exclusion order and cease and desist orders prohibiting the importation of certain electric shavers and components and accessories thereof. The investigation is hereby terminated.
Sidney A. Rosenzweig, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-2532. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
On November 18, 2020, the Commission instituted this investigation based on a complaint filed by Complainant Skull Shaver (“Skull Shaver”) of Moorestown, New Jersey. 85 FR 73510-11 (Nov. 18, 2020). The complaint alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, based on the importation into the United States, the sale for importation, or the sale within the United States after importation of certain electric shavers and components and accessories thereof by reason of infringement of certain claims of U.S. Patent Nos. 8,726,528 (“the ’528 patent”) and D672,504 (“the ’504 design patent”).
The Commission terminated Rayenbarny from the investigation because its accused product was actually imported by Benepuri LLC (“Benepuri”) of Menands, New York; the Commission allowed Benepuri to intervene as a respondent. Notice, 85 FR 82514, 82515 (Dec. 18, 2020). The Commission later granted Skull Shaver's motion to amend the Complaint and the notice of investigation to correct the name of Wenzhou Wending Electric Appliance Co., Ltd. d.b.a. “Paitree” as Wenzhou Wending Electric Appliance Co., Ltd. (“Wenzhou”), and to correct the addresses of several respondents. Notice, 86 FR 14645, 14645 (Mar. 17, 2021). The Commission terminated Magicfly from the investigation on the basis of settlement. Notice at 2 (May 19, 2021). The Commission terminated Nukun and Benepuri from the investigation on the basis of withdrawal of the complaint. Notice at 2 (June 21, 2021) (Nukun); Notice at 2 (Oct. 28, 2021) (Benepuri). All of the remaining respondents (
On May 26, 2021, Skull Shaver filed a motion for summary determination of
On September 23, 2021, OUII filed a notice of supplemental authority concerning the domestic industry requirement. On September 28, 2021, the ALJ issued an order (Order No. 31) ordering certain supplementation of Skull Shaver's domestic industry analysis. On October 14, 2021, Skull Shaver submitted its supplement in response to Order No. 31. No other responses to Order No. 31 were filed. On November 18, 2021, the ALJ granted-in-part Skull Shaver's motion for summary determination as the subject ID.
The ID found that Skull Shaver owns the asserted patents, and that those patents are valid and enforceable. ID at 3. The ID further found that although all respondents imported, sold for importation, or sold within the United States after importation at least one accused article, the only respondents whose articles infringe the asserted patents are Yiwu Xingye and Yiwu City.
No petitions for review of the ID were filed. The Commission determined to review the ID's findings concerning the economic prong of the domestic industry requirement, and not to review the ID's findings on other issues. Notice, 87 FR 990, 991 (Jan. 7, 2022). The review notice solicited written submissions, including on remedy, the public interest, and bonding from the parties, interested government agencies, and the public.
In response to the Commission notice, Skull Shaver and OUII each filed an opening submission and a reply. No other parties filed submissions.
On review, the Commission has determined to affirm the ID's finding that Skull Shaver has satisfied the economic prong of the domestic industry requirement, and the Commission thereby affirms the ID's finding of a violation of section 337.
The Commission finds that the RD's recommended remedy is appropriate for the reasons set forth in the attached opinion. Accordingly, the Commission finds that the appropriate remedy is: (1) A general exclusion order prohibiting the entry of certain electric shavers and components and accessories thereof; and (2) cease and desist orders directed to Yiwu Xingye and Yiwu City. The Commission has determined that the public interest factors enumerated in section 337(d), (f), and/or (g), 19 U.S.C. 1337(d), (f), (g), do not preclude the issuance of the GEO or the CDOs.
The Commission has determined that a bond in the amount of one hundred percent (100%) of the entered value of the subject articles is required during the Presidential review period, 19 U.S.C. 1337(j) for the reasons set forth in the RD and the attached Commission Opinion. The investigation is hereby terminated.
While temporary remote operating procedures are in place in response to COVID-19, the Office of the Secretary is not able to serve parties that have not retained counsel or otherwise provided a point of contact for electronic service. Accordingly, pursuant to Commission Rules 201.16(a) and 210.7(a)(1) (19 CFR 201.16(a), 210.7(a)(1)), the Commission orders that the Complainant complete service for any party without a method of electronic service noted on the attached Certificate of Service and shall file proof of service on the Electronic Document Information System (EDIS).
The Commission's orders and opinion were delivered to the President and the United States Trade Representative on the day of their issuance.
The Commission vote for these determinations took place on March 17, 2022.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Drug Enforcement Administration, Justice.
Notice of application.
Johnson Matthey Pharmaceutical Materials, Inc., has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before May 23, 2022. Such persons may also file a written request for a hearing on the application on or before May 23, 2022.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on February 28, 2022, Johnson Matthey Pharmaceutical Materials, Inc., 2003 Nolte Drive, West Deptford, New Jersey 08066-1742, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the listed controlled substances for the internal use intermediates or for sale to its customers. In reference to drug codes 7360 (Marihuana), and 7370 (Tetrahydrocannabinols), the company plans to bulk manufacture these drugs as synthetic. No other activities for these drug codes are authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
Sharp Clinical Services, Inc. has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before April 22, 2022. Such persons may also file a written request for a hearing on the application on or before April 22, 2022.
The DEA requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on February 2, 2022, Sharp Clinical Services, Inc. 2400 Baglyos Circle, Bethlehem, Pennsylvania 18020-8024, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the listed control substances for clinical trials. No other activity for these drug codes is authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
Siemens Healthcare Diagnostics, Inc. has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before May 23, 2022. Such persons may also file a written request for a hearing on the application on or before May 23, 2022.
The Drug Enforcement Administration (DEA) requires that all comments be submitted electronically
In accordance with 21 CFR 1301.33(a), this is notice that on January 17, 2022, Siemens Healthcare Diagnostics Inc., 100 GBC Drive, Mailstop 514, Newark, Delaware 19702-2461, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to produce the listed controlled substance in bulk to be used in the manufacture of DEA exempt products. No other activities for these drug codes are authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
Usona Institute, Inc. has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before May 23, 2022. Such persons may also file a written request for a hearing on the application on or before May 23, 2022.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on February 16, 2022, Usona Institute, Inc., 2780 Woods Hollow Road, Room 2413, Fitchburg, Wisconsin 53711, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the listed controlled substances for use in chemical process development as well as pre-clinical and clinical research.
Drug Enforcement Administration, Justice.
Notice of application.
Patheon API Manufacturing, Inc. has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before May 23, 2022. Such persons may also file a written request for a hearing on the application on or before May 23, 2022.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on March 2, 2022, Patheon API Manufacturing, Inc., 309 Delaware Street, Greenville, South Carolina 29605-5420, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the listed controlled substances as an Active Pharmaceutical Ingredient (API) for distribution to its customers. In reference to dug code 7370 (Tetrahydrocannabinols), the company plans to bulk manufacture this drug as synthetic. No other activities for these drug codes are authorized for this registration.
Federal Bureau of Investigation, Office of Private Sector, Department of Justice.
30 day notice.
The Department of Justice, Federal Bureau of Investigation, Office of Private Sector, is submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
The Department of Justice encourages public comment and will accept input until April 22, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
➢ Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Office of Private Sector, 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;
➢ Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; and
➢ Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 3E.405A, Washington, DC 20530.
Office of Justice Programs (OJP), Justice.
Notice of meeting.
This is an announcement of a meeting of the Global Justice Information Sharing Initiative (Global) Federal Advisory Committee (GAC) to discuss the Global Initiative, as described at
The meeting will take place on Tuesday April 19, 2021 from 1:00 p.m. to 3:00 p.m. ET.
The meeting will be held virtually via Zoom for Government. Approved observers will receive the login/sign-in information via email prior to the meeting.
Mr. David P. Lewis, Global Designated Federal Official (DFO), Bureau of Justice Assistance, Office of Justice Programs, 810 7th Street, Washington, DC 20531; Phone (202) 616-7829 [note: this is not a toll-free number]; email:
This meeting is open to the public, however, members of the public who wish to attend this meeting must register with Mr. David P. Lewis at least (7) days in advance of the meeting. Access to the virtual meeting room will not be allowed without prior authorization. All attendees will be required to virtually sign-in via Zoom before they will be admitted to the virtual meeting.
Anyone requiring special accommodations should notify Mr. Lewis at least seven (7) days in advance of the meeting.
The GAC will guide and monitor the development of the Global information sharing concept. It will advise the Assistant Attorney General, OJP; the Attorney General; the President (through the Attorney General); and local, state, tribal, and federal policymakers in the executive, legislative, and judicial branches. The GAC will also advocate for strategies for accomplishing a Global information sharing capability. Interested persons whose registrations have been accepted may be permitted to participate in the discussions at the discretion of the meeting chairman and with approval of the Global DFO.
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces Bay Area Compliance Laboratories Corporation (BACL), application requesting renewal of recognition as a Nationally Recognized Testing Laboratory (NRTL).
Submit comments, information, and documents in response to this notice, or requests for an extension of time to make a submission, on or before April 7, 2022.
Submit comments by any of the following methods:
Information regarding this notice is available from the following sources:
OSHA recognition of a NRTL signifies that the organization meets the requirements in section 1910.7 of title 29, Code of Federal Regulations (29 CFR 1910.7). Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition and is not a delegation or grant of government authority. As a result of recognition, employers may use products properly approved by the NRTL to meet OSHA standards that require testing and certification. OSHA maintains an informational web page for each NRTL that details its scope of recognition available at
OSHA processes applications by a NRTL for renewal of recognition following requirements in appendix A to 29 CFR 1910.7. OSHA conducts renewals in accordance with the procedures in 29 CFR 1910.7, Appendix A, paragraph II.C. In accordance with these procedures, NRTLs submit a renewal request to OSHA, not less than nine months or no more than one year, before the expiration date of its current recognition. The submission includes a request for renewal and any additional information the NRTL wishes to submit to demonstrate its continued compliance with the terms of its recognition and 29 CFR 1910.7. If OSHA has not conducted an on-site assessment of the NRTL's headquarters and key sites within the past 18 to 24 months, it will schedule the necessary on-site assessments prior to the expiration date of the NRTL's recognition. Upon review of the submitted material and, as necessary, the successful completion of the on-site assessment, OSHA announces its preliminary decision to grant or deny renewal in the
BACL initially received OSHA recognition as a NRTL on April 6, 2017 (82 FR 16856) for a five-year period that ends on April 6, 2022. BACL submitted a timely request for renewal, dated July 7, 2021 (OSHA-2016-0022-0013), and retains its recognition pending OSHA's final decision in this renewal process. The current address of the BACL facility recognized by OSHA and included as part of the renewal request is:
• Bay Area Compliance Laboratories Corporation, 1274 Anvilwood Avenue, Sunnyvale, California 94089.
OSHA is providing notice that BACL is applying for renewal of its recognition as a NRTL. This renewal covers BACL's existing NRTL scope of recognition. OSHA evaluated BACL's application for renewal and preliminarily determined that BACL can continue to meet the requirements prescribed by 29 CFR 1910.7 for recognition. Accordingly, OSHA is making a preliminary determination that it does not need to conduct an additional on-site review of BACL's facility based on its evaluations of BACL's application and all other available information. This information includes OSHA's most recent audit of BACL's NRTL recognized site during this recognition period, and the satisfactory resolution of non-conformances with the requirements of 29 CFR 1910.7. This preliminary finding does not constitute an interim or temporary approval of the request.
OSHA welcomes public comment as to whether BACL meets the requirements of 29 CFR 1910.7 for renewal of its recognition as a NRTL. Comments should consist of pertinent written documents and exhibits.
OSHA staff will review all comments to the docket submitted in a timely manner and, after addressing the issues raised by these comments, will make a recommendation to the Assistant Secretary on whether to grant BACL's application for renewal. The Assistant Secretary will make the final decision on granting the application and, in making this decision, may undertake other proceedings prescribed in Appendix A to 29 CFR 1910.7.
OSHA will publish a public notice of this final decision in the
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW, Washington, DC 20210, authorized the preparation of this notice. Accordingly, the agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 8-2020 (85 FR 58393, September 18, 2020), and 29 CFR 1910.7.
Postal Regulatory Commission.
Notice.
The Commission is recognizing a recent Postal Service filing requesting the transfer of Post Office Box service at a small number of selected locations from the market dominant to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On March 16, 2022, the Postal Service filed a request under 39 U.S.C. 3642 and 39 CFR 3040.130,
Having recently completed further evaluation of the criteria that indicate competitive status, the Postal Service requests the Commission to transfer an additional 297 locations from the market dominant to the competitive Post Office Box fee group.
• Attachment A—Resolution of the Governors of the United States Postal Service, Transfer of Selected Post Office Box Service Locations to the Competitive Product List, May 6, 2021 (Resolution No. 21-12);
• Attachment B—Statement of Supporting Justification; and
• Attachment C—Proposed Mail Classification Schedule Changes.
Interested persons may submit comments on whether the Request is consistent with the policies of 39 U.S.C. 3642, 39 CFR 3040.130
The Commission appoints Eric D. Hughes to serve as Public Representative in this proceeding.
1. The Commission establishes Docket No. MC2022-46 to consider the matters raised by the Postal Service's Request.
2. Pursuant to 39 U.S.C. 505, Eric D. Hughes is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
3. Comments by interested persons are due by April 29, 2022.
4. Reply comments are due by May 13, 2022.
5. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on March 8, 2022, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to harmonize its processes and procedures under Options 3, Section 20 with those of its affiliated options exchange.
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 harmonize its existing processes for the review of decisions on appeal under Options 3, Section 20 with those of its affiliate Nasdaq Phlx LLC (“Phlx”). The Exchange also proposes several non-substantive, conforming changes in Options 3, Section 1.
Today, Options 3, Section 20(k) governs the appeal process for determinations by Exchange staff made under this Rule, including obvious error determinations. Specifically, a party to a transaction affected by a decision made under this section may appeal that decision to the Exchange Review Council. An appeal must be made in writing, and must be received by the Exchange within thirty (30) minutes after the person making the appeal is given the notification of the determination being appealed.
The Exchange proposes generally to maintain its current appeal process with certain additions to harmonize its process with that of its affiliate, Phlx. First, while Phlx similarly requires the parties to submit a request for review within thirty (30) minutes of being notified of the determination being appealed, Phlx also provides parties with additional time to submit their request if the notification occurs later in the trading day. In particular, if the notification is made after 3:30 p.m. Eastern Time, either party has until 9:30 a.m. Eastern Time on the next trading day to submit a request for review.
Second, the Exchange proposes to add a provision for when the Exchange Review Council panel must render a decision on requests for appeal to harmonize to Phlx's process. Specifically, the Exchange proposes in Options 3, Section 20(k) that the Exchange Review Council panel shall review the facts and render a decision on the day of the transaction, or the next trade day in the case where a request is properly made after 3:30 p.m. on the day of the transaction or where the request is properly made the next trade day.
The Exchange proposes non-substantive, conforming amendments to Options 3, Section 1 (Days and Hours of Business). The Exchange first proposes to amend the title from “Days and Hours of Business” to “Hours of Business.” The Exchange recently filed to establish General 3, Section 1030, which governs the days the Exchange will be open for business.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that its proposal to amend the current appeal process to harmonize with Phlx's appeal process is consistent with the Act because it will continue to afford Participants with due process in connection with decisions made by Officials under Options 3, Section 20 that the Participant may feel warrants review. As discussed above, the proposal would allow either party until 9:30 a.m. the next trading to submit a request for review if notification is made after 3:30 p.m., which the Exchange believes will be helpful for Participants in submitting their appeal requests in a timely manner. Furthermore, the proposal provides the Exchange Review Council panel additional time and flexibility to render decisions on requests for appeal in cases where a request is properly made after 3:30 p.m. on the day of the transaction or where the request is properly made the next trade day, and is designed to reduce administrative burden on the Exchange.
Ultimately, the proposed changes to the appeal process are intended to align certain time frames with those of its affiliate in order to provide more consistent rules and procedures across the affiliated options exchanges owned by Nasdaq, Inc. Consistent rules and procedures, in turn, would simplify and streamline the regulatory requirements and increase the understanding of the Exchange's operations for Participants of the Exchange that are also members on the Exchange's affiliated options exchanges. Greater harmonization across the affiliated options exchanges will result in greater uniformity, rules that are easier to follow and understand, and more efficient regulatory compliance, thereby contributing to the protection of investors and the public interest. As such, the proposed rule change would foster cooperation and coordination with persons engaged in facilitating transactions in securities and would remove impediments to and perfect the mechanism of a free and open market and a national market system.
Lastly, the Exchange's proposal to amend Options 3, Section 1 (Days and Hours of Business) as described above will bring greater clarity, and ensure that this Rule conforms to the changes made in the recent filing to establish General 3, Section 1030, which governs the days the Exchange will be open for business.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
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. As it relates to the proposed changes to the appeal process under Options 3, Section 20(k), the changes are designed to provide greater harmonization among similar rules and processes across the Exchange's affiliated options exchanges, resulting in more efficient regulatory compliance for common members. For these reasons, the Exchange believes that the proposed rule change reflects this competitive environment and does not impose any undue burden on intermarket competition.
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 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.
You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NASDAQ-2022-023 and should be submitted on or before
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe C2 Exchange, Inc. (the “Exchange” or “C2”) proposes to extend the pilot period related to the market-wide circuit breaker in Rule 5.20.01 to April 18, 2022. The text of the proposed rule change is provided in Exhibit 5. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to extend the pilot related to the market-wide circuit breaker in Rule 5.20.01 to the close of business on April 18, 2022.
The Market-Wide Circuit Breaker (“MWCB”) rules, including the Exchange's Rule 5.20.01, provide an important, automatic mechanism that is invoked to promote stability and investor confidence during periods of significant stress when cash equities securities experience extreme market-wide declines. The MWCB rules are designed to slow the effects of extreme price declines through coordinated trading halts across both cash equity and equity options securities markets.
The cash equities rules governing MWCBs were first adopted in 1988 and, in 2012, all U.S. cash equity exchanges and FINRA amended their cash equities uniform rules on a pilot basis (the “Pilot Rules”, including Exchange Rule 5.20.01).
As stated above, because all U.S. equity exchanges and FINRA adopted uniform Pilot Rules relating to market-wide circuit breakers in 2012, the Exchange, too, adopted a MWCB mechanism on a pilot basis pursuant to Rule 5.20.01. Pursuant to Rule 5.20.01, a market-wide trading halt will be triggered if the S&P 500 Index declines in price by specified percentages from the prior day's closing price of that index. Currently, the triggers are set at three circuit breaker thresholds: 7% (Level 1), 13% (Level 2), and 20% (Level 3). A market decline that triggers a Level 1 or Level 2 halt after 9:30 a.m. ET and before 3:25 p.m. ET would halt market-wide trading for 15 minutes, while a similar market decline at or after 3:25 p.m. ET would not halt market-wide trading. A market decline that triggers a Level 3 halt, at any time during the trading day, would halt market-wide trading for the remainder of the trading day.
In late 2019, Commission staff requested the formation of a MWCB Task Force (“Task Force”) to evaluate the operation and design of the MWCB mechanism. The Task Force included representatives from the SROs, the Commission, CME, the Commodity Futures Trading Commission (“CFTC”), and the securities industry and conducted several organizational meetings in December 2019 and January 2020. In Spring 2020, the MWCB mechanism proved itself to be an effective tool for protecting markets through turbulent times. In March 2020, at the outset of the worldwide COVID-19 pandemic, U.S. equities markets experienced four MWCB Level 1 halts, on March 9, 12, 16, and 18, 2020. In each instance, the markets halted as intended upon a 7% drop in the S&P 500 Index, and resumed as intended 15 minutes later.
In response to these events, in the Spring and Summer of 2020, the Task Force held ten meetings that were attended by Commission staff, with the goal of performing an expedited review of the March 2020 halts and identifying any areas where the MWCB mechanism had not worked properly. Given the risk of unintended consequences, the Task Force did not recommend changes that were not rooted in a noted deficiency. The Task Force recommended creating a process for a backup reference price in the event that SPX were to become unavailable, and enhancing functional MWCB testing. The Task Force also asked CME to consider modifying its rules to enter into a limit-down state in the futures pre-market after a 7% decline instead of 5%. CME made the requested change, which became effective on October 12, 2020.
On September 17, 2020, the Director of the Commission's Division of Trading and Markets asked the SROs to conduct a more complete study of the design and operation of the Pilot Rules and the LULD Plan during the period of volatility in the Spring of 2020. In response to the request, the SROs created a MWCB “Working Group” composed of SRO representatives and industry advisers that included members of the advisory committees to both the LULD Plan and the NMS Plans governing the collection, consolidation, and dissemination of last-sale transaction reports and quotations in NMS Stocks. The Working Group met regularly from September 2020 through March 2021 to consider the Commission's request, review data, and compile its study. The Working Group's efforts in this respect incorporated and built on the work of an MWCB Task Force. The Working Group submitted its study to the Commission on March 31, 2021 (the “Study”).
In the Study, the Working Group concluded: (1) The MWCB mechanism set out in the Pilot Rules worked as intended during the March 2020 events; (2) the MWCB halts triggered in March 2020 appear to have had the intended effect of calming volatility in the market, without causing harm; (3) the design of the MWCB mechanism with respect to reference value (SPX), trigger levels (7%/13%/20%), and halt times (15 minutes) is appropriate; (4) the change implemented in Amendment 10 to the Plan to Address Extraordinary Market Volatility (the “Limit Up/Limit Down Plan” or “LULD Plan”) did not likely have any negative impact on MWCB functionality; and (5) no changes should be made to the mechanism to prevent the market from halting shortly after the opening of regular trading hours at 9:30 a.m. In light of the foregoing conclusions, the Working Group also made several recommendations, including that the Pilot Rules should be permanent without any changes.
On July 16, 2021, an SRO member of the Working Group, the New York Stock Exchange (“NYSE”), proposed a rule change to make the Pilot Rules permanent, consistent with the Working Group's recommendations.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The MWCB mechanism under Rule 5.20.01 is an important, automatic mechanism that is invoked to promote stability and investor confidence during a period of significant stress when securities markets experience extreme broad-based declines. Extending the market-wide circuit breaker pilot for an additional month would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Commission reviews the proposed rule change to make the Pilot Rules permanent.
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning when and how to halt trading in all stocks as a result of extraordinary market volatility. Based on the foregoing, the Exchange believes the benefits to market participants from the MWCB under Rule 5.20.01 should continue on a pilot basis because the MWCB will promote fair and orderly markets and protect investors and the public interest.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act because the proposal would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Commission reviews the proposed rule change to make the Pilot Rules permanent.
Further, the Exchange understands that FINRA and other national securities exchanges will file proposals to extend their rules regarding the market-wide circuit breaker pilot. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-C2-2022-008 and should be submitted on or before April 13, 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 (the “Act”),
Cboe BYX Exchange, Inc. (“BYX” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposal to extend the pilot related to the market-wide circuit breaker in Rule 11.18 to April 18, 2022. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
BYX Rules 11.18(a) through (d), (f) and (g) describe the methodology for determining when to halt trading in all stocks due to extraordinary market volatility,
The market-wide circuit breaker under Rule 11.18 provides an important, automatic mechanism that is invoked to promote stability and investor confidence during a period of significant stress when securities markets experience extreme broad-based declines. All U.S. equity exchanges and FINRA adopted uniform rules on a pilot basis relating to market-wide circuit breakers in 2012 (“MWCB Rules”), which are designed to slow the effects of extreme price movement through coordinated trading halts across securities markets when severe price declines reach levels that may exhaust market liquidity.
Pursuant to Rule 11.18, a market-wide trading halt will be triggered if the S&P 500 Index declines in price by specified percentages from the prior day's closing price of that index. Currently, the triggers are set at three circuit breaker thresholds: 7% (Level 1), 13% (Level 2), and 20% (Level 3). A market decline that triggers a Level 1 or Level 2 halt after 9:30 a.m. ET and before 3:25 p.m. ET would halt market-wide trading for
In the Spring of 2020, at the outset of the worldwide COVID-19 pandemic, U.S. equities markets experienced four MWCB Level 1 halts, on March 9, 12, 16, and 18, 2020. In each instance, the markets halted as intended upon a 7% drop in the S&P 500 Index, and resumed as intended 15 minutes later.
In response to these events, the previously-convened MWCB Taskforce (“Taskforce”) reviewed the March 2020 halts and considered whether any immediate changes to the MWCB mechanism should be made. The Taskforce, consisting of representatives from equities exchanges, futures exchanges, FINRA, broker-dealers, and other market participants, had been assembled in early 2020 to consider more generally potential changes to the MWCB mechanism. The Taskforce held ten meetings in the Spring and Summer of 2020 that were attended by Commission staff to consider, among other things: (1) Whether to retain the S&P 500 Index as the standard for measuring market declines; (2) whether halts that occur shortly after the 9:30 a.m. market open cause more harm than good; and (3) what additional testing of the MWCB mechanism should be done.
After considering data and anecdotal reports of market participants' experiences during the March 2020 MWCB events, the Taskforce did not recommend immediate changes be made to the use of the S&P 500 Index as the reference price against which market declines are measured, or to the current MWCB mechanism which permits halts even shortly after the 9:30 a.m. market open. The Taskforce recommended creating a process for a backup reference price in the event that the S&P 500 Index becomes unavailable, and enhancing functional MWCB testing. The Taskforce also asked CME to consider modifying its rules to enter into a limit-down state in the futures pre-market after a 7% decline instead of 5%.
On September 17, 2020, the Director of the Division of Trading and Markets requested that the equities exchanges and FINRA prepare a more complete study of the design and operation of the MWCB mechanism and the LULD Plan during the period of volatility in the Spring of 2020. In response to the request, the SROs created a MWCB “Working Group” composed of SRO representatives and industry advisers that included members of the advisory committees to both the LULD Plan and the NMS Plans governing the collection, consolidation, and dissemination of last-sale transaction reports and quotations in NMS Stocks. The Working Group met regularly from September 2020 through March 2021 to consider the Commission's request, review data, and compile its study. The Working Group's efforts in this respect incorporated and built on the work of an MWCB Task Force. The Working Group submitted its study to the Commission on March 31, 2021 (the “Study”).
The SROs have since worked on a proposed a rule change to make the Pilot Rules permanent, consistent with the Working Group's recommendations. New York Stock Exchange (“NYSE”) filed such proposed rule change on July 16, 2021.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning when and how to halt trading in all stocks as a result of extraordinary market volatility. Based on the foregoing, the Exchange believes the benefits to market participants from the MWCB under Rule 11.18 should continue on a pilot basis because the MWCB will promote fair and orderly markets, and protect investors and the public interest.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act because the proposal would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Exchange and the other SROs finalize their proposals to make the Pilot Rules permanent. Further, the Exchange understands that FINRA and other national securities exchanges will file proposals to extend their rules regarding the market-wide circuit breaker pilot following Commission approval of the NYSE proposal. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No written comments were either solicited or received on the proposed rule change.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-CboeBYX-2022-008 and should be submitted on or before April 13, 2022.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposed rule to extend the pilot related to the market-wide circuit breaker mechanism in Rule 2622 to the close of business on April 18, 2022.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to extend the pilot related to the market-wide circuit breaker mechanism in Rule 2622 to the close of business on April 18, 2022.
The Market-Wide Circuit Breaker (“MWCB”) rules, including the Exchange's Rule 2622, provide an important, automatic mechanism that is invoked to promote stability and investor confidence during periods of significant stress when cash equities securities experience extreme market-wide declines. The MWCB rules are designed to slow the effects of extreme price declines through coordinated trading halts across both cash equity and equity options securities markets.
The cash equities rules governing MWCBs were first adopted in 1988. In 2012 all U.S. cash equity exchanges and FINRA amended their cash equities uniform rules on a pilot basis
Exchange Rule 2622 was approved by the Commission to operate on a pilot basis set to expire on at the close of business on October 18, 2020.
The Exchange now proposes to amend Rule 2622 to extend the pilot to the close of business on April 18, 2022. This filing does not propose any substantive or additional changes to Rule 2622.
In late 2019, Commission staff requested the formation of a MWCB Task Force (“Task Force”) to evaluate the operation and design of the MWCB mechanism. The Task Force included representatives from the SROs, the Commission, CME, the Commodity Futures Trading Commission (“CFTC”), and the securities industry and conducted several organizational meetings in December 2019 and January 2020.
In Spring 2020, the MWCB mechanism proved itself to be an effective tool for protecting markets through turbulent times. In March 2020, at the outset of the worldwide COVID-19 pandemic, U.S. equities markets experienced four MWCB Level 1 halts, on March 9, 12, 16, and 18, 2020. In each instance, the markets halted as intended upon a 7% drop in the S&P 500 Index, and resumed as intended 15 minutes later.
In response to these events, in the Spring and Summer of 2020, the Task Force held ten meetings that were attended by Commission staff, with the goal of performing an expedited review of the March 2020 halts and identifying any areas where the MWCB mechanism had not worked properly. Given the risk of unintended consequences, the Task Force did not recommend changes that were not rooted in a noted deficiency. The Task Force recommended creating a process for a backup reference price in the event that SPX were to become unavailable, and enhancing functional MWCB testing. The Task Force also asked CME to consider modifying its rules to enter into a limit-down state in the futures pre-market after a 7% decline instead of 5%. CME made the requested change, which became effective on October 12, 2020.
On September 17, 2020, the Director of the Commission's Division of Trading and Markets asked the SROs to conduct a more complete study of the design and operation of the Pilot Rules and the LULD Plan during the period of volatility in the Spring of 2020.
In response to the request, the SROs created a MWCB “Working Group” composed of SRO representatives and industry advisers that included members of the advisory committees to both the LULD Plan and the NMS Plans governing the collection, consolidation, and dissemination of last-sale transaction reports and quotations in NMS Stocks. The Working Group met regularly from September 2020 through March 2021 to consider the Commission's request, review data, and compile its study. The Working Group's efforts in this respect incorporated and
The Working Group submitted its study to the Commission on March 31, 2021 (the “Study”).
In the Study, the Working Group concluded: (1) The MWCB mechanism set out in the Pilot Rules worked as intended during the March 2020 events; (2) the MWCB halts triggered in March 2020 appear to have had the intended effect of calming volatility in the market, without causing harm; (3) the design of the MWCB mechanism with respect to reference value (SPX), trigger levels (7%/13%/20%), and halt times (15 minutes) is appropriate; (4) the change implemented in Amendment 10 to the Plan to Address Extraordinary Market Volatility (the “Limit Up/Limit Down Plan” or “LULD Plan”) did not likely have any negative impact on MWCB functionality; and (5) no changes should be made to the mechanism to prevent the market from halting shortly after the opening of regular trading hours at 9:30 a.m.
In light of the foregoing conclusions, the Working Group also made several recommendations, including that the Pilot Rules should be permanent without any changes.
On July 16, 2021, the New York Stock Exchange LLC (“NYSE”) proposed a rule change to make the Pilot Rules permanent, consistent with the Working Group's recommendations.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning when and how to halt trading in all stocks as a result of extraordinary market volatility. Based on the foregoing, the Exchange believes the benefits to market participants from Pilot Rules should continue on a pilot basis because they will promote fair and orderly markets and protect investors and the public interest.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act because the proposal would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Commission reviews the NYSE's proposed rule change to make the Pilot Rules permanent.
Further, the Exchange understands that FINRA and other national securities exchanges will file proposals to extend their rules regarding the MWCB pilot. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
Written comments were neither solicited nor received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of 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 under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
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-PEARL-2022-08 and should be submitted on or before April 13, 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 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to extend the pilot period related to the market-wide circuit breaker in Rule 5.22 to April 18, 2022. The text of the proposed rule change is provided in Exhibit 5. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to extend the pilot related to the market-wide circuit breaker in Rule 5.22 to the close of business on April 18, 2022.
The Market-Wide Circuit Breaker (“MWCB”) rules, including the Exchange's Rule 5.22, provide an important, automatic mechanism that is invoked to promote stability and investor confidence during periods of significant stress when cash equities securities experience extreme market-wide declines. The MWCB rules are designed to slow the effects of extreme price declines through coordinated trading halts across both cash equity and equity options securities markets.
The cash equities rules governing MWCBs were first adopted in 1988 and, in 2012, all U.S. cash equity exchanges and FINRA amended their cash equities uniform rules on a pilot basis (the “Pilot Rules”, including Exchange Rule 5.22).
As stated above, because all U.S. equity exchanges and FINRA adopted uniform Pilot Rules relating to market-wide circuit breakers in 2012, the Exchange, too, adopted a MWCB mechanism on a pilot basis pursuant to Rule 5.22. Pursuant to Rule 5.22, a market-wide trading halt will be triggered if the S&P 500 Index declines in price by specified percentages from the prior day's closing price of that index. Currently, the triggers are set at three circuit breaker thresholds: 7% (Level 1), 13% (Level 2), and 20% (Level 3). A market decline that triggers a Level 1 or Level 2 halt after 9:30 a.m. ET and before 3:25 p.m. ET would halt market-wide trading for 15 minutes, while a similar market decline at or after 3:25 p.m. ET would not halt market-wide trading. A market decline that triggers a Level 3 halt, at any time during the trading day, would halt market-wide trading for the remainder of the trading day.
In late 2019, Commission staff requested the formation of a MWCB Task Force (“Task Force”) to evaluate the operation and design of the MWCB mechanism. The Task Force included representatives from the SROs, the Commission, CME, the Commodity Futures Trading Commission (“CFTC”), and the securities industry and conducted several organizational meetings in December 2019 and January 2020. In Spring 2020, the MWCB mechanism proved itself to be an effective tool for protecting markets through turbulent times. In March 2020, at the outset of the worldwide COVID-19 pandemic, U.S. equities markets experienced four MWCB Level 1 halts, on March 9, 12, 16, and 18, 2020. In each instance, the markets halted as intended upon a 7% drop in the S&P 500 Index, and resumed as intended 15 minutes later.
In response to these events, in the Spring and Summer of 2020, the Task Force held ten meetings that were attended by Commission staff, with the goal of performing an expedited review of the March 2020 halts and identifying any areas where the MWCB mechanism had not worked properly. Given the risk of unintended consequences, the Task Force did not recommend changes that were not rooted in a noted deficiency. The Task Force recommended creating a process for a backup reference price in the event that SPX were to become unavailable, and enhancing functional MWCB testing. The Task Force also asked CME to consider modifying its rules to enter into a limit-down state in the futures pre-market after a 7% decline instead of 5%. CME made the requested change, which became effective on October 12, 2020.
On September 17, 2020, the Director of the Commission's Division of Trading and Markets asked the SROs to conduct a more complete study of the design and operation of the Pilot Rules and the LULD Plan during the period of volatility in the Spring of 2020. In response to the request, the SROs created a MWCB “Working Group” composed of SRO representatives and industry advisers that included members of the advisory committees to both the LULD Plan and the NMS Plans governing the collection, consolidation, and dissemination of last-sale transaction reports and quotations in NMS Stocks. The Working Group met regularly from September 2020 through March 2021 to consider the Commission's request, review data, and compile its study. The Working Group's efforts in this respect incorporated and built on the work of an MWCB Task Force. The Working Group submitted its study to the Commission on March 31, 2021 (the “Study”).
In the Study, the Working Group concluded: (1) The MWCB mechanism
On July 16, 2021, an SRO member of the Working Group, the New York Stock Exchange (“NYSE”), proposed a rule change to make the Pilot Rules permanent, consistent with the Working Group's recommendations.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The MWCB mechanism under Rule 5.22 is an important, automatic mechanism that is invoked to promote stability and investor confidence during a period of significant stress when securities markets experience extreme broad-based declines. Extending the market-wide circuit breaker pilot for an additional month would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Commission reviews the NYSE Proposal change to make the Pilot Rules permanent.
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning when and how to halt trading in all stocks as a result of extraordinary market volatility. Based on the foregoing, the Exchange believes the benefits to market participants from the MWCB under Rule 5.22 should continue on a pilot basis because the MWCB will promote fair and orderly markets and protect investors and the public interest.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act because the proposal would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Commission reviews the proposed rule change to make the Pilot Rules permanent.
Further, the Exchange understands that FINRA and other national securities exchanges will file proposals to extend their rules regarding the market-wide circuit breaker pilot. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-CBOE-2022-013 and should be submitted on or before April 13, 2022.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
Pursuant to the provisions of Section 19(b)(1) under the Act,
The text of the proposed rule change is available at the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statement may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
1.
The Market-Wide Circuit Breaker (“MWCB”) rules, including paragraphs (a) through (d) and (f) of IEX Rule 11.280, provide an important, automatic mechanism that is invoked to promote stability and investor confidence during periods of significant stress when cash equities securities experience extreme market-wide declines. The MWCB rules are designed to slow the effects of extreme price declines through coordinated trading halts across both cash equity and equity options securities markets.
The cash equities rules governing MWCBs were first adopted in 1988 and, in 2012, all U.S. cash equity exchanges and FINRA amended their cash equities
The Commission approved the Pilot Rules, the term of which was to coincide with the pilot period for the Plan to Address Extraordinary Market Volatility Pursuant to Rule 608 of Regulation NMS (the “LULD Plan”),
The Exchange now proposes to amend IEX Rule 11.280 to extend the pilot one more month, to the close of business on April 18, 2022. This filing does not propose any substantive or additional changes to IEX Rule 11.280.
In late 2019, Commission staff requested the formation of a MWCB Task Force (“Task Force”) to evaluate the operation and design of the MWCB mechanism. The Task Force included representatives from the SROs, the Commission, CME, the Commodity Futures Trading Commission (“CFTC”), and the securities industry and conducted several organizational meetings in December 2019 and January 2020.
In Spring 2020, the MWCB mechanism proved itself to be an effective tool for protecting markets through turbulent times. In March 2020, at the outset of the worldwide COVID-19 pandemic, U.S. equities markets experienced four MWCB Level 1 halts, on March 9, 12, 16, and 18, 2020. In each instance, the markets halted as intended upon a 7% drop in the S&P 500 Index, and resumed as intended 15 minutes later.
In response to these events, in the Spring and Summer of 2020, the Task Force held ten meetings that were attended by Commission staff, with the goal of performing an expedited review of the March 2020 halts and identifying any areas where the MWCB mechanism had not worked properly. Given the risk of unintended consequences, the Task Force did not recommend changes that were not rooted in a noted deficiency. The Task Force recommended creating a process for a backup reference price in the event that SPX were to become unavailable, and enhancing functional MWCB testing. The Task Force also asked CME to consider modifying its rules to enter into a limit-down state in the futures pre-market after a 7% decline instead of 5%. CME made the requested change, which became effective on October 12, 2020.
On September 17, 2020, the Director of the Commission's Division of Trading and Markets asked the SROs to conduct a more complete study of the design and operation of the Pilot Rules and the LULD Plan during the period of volatility in the Spring of 2020.
In response to the request, the SROs created a MWCB “Working Group” composed of SRO representatives and industry advisers that included members of the advisory committees to both the LULD Plan and the NMS Plans governing the collection, consolidation, and dissemination of last-sale transaction reports and quotations in NMS Stocks. The Working Group met regularly from September 2020 through March 2021 to consider the Commission's request, review data, and compile its study. The Working Group's efforts in this respect incorporated and built on the work of an MWCB Task Force.
The Working Group submitted its study to the Commission on March 31, 2021 (the “Study”).
In the Study, the Working Group concluded: (1) The MWCB mechanism set out in the Pilot Rules worked as intended during the March 2020 events; (2) the MWCB halts triggered in March 2020 appear to have had the intended effect of calming volatility in the market, without causing harm; (3) the design of the MWCB mechanism with respect to reference value (SPX), trigger levels (7%/13%/20%), and halt times (15 minutes) is appropriate; (4) the change implemented in Amendment 10
In light of the foregoing conclusions, the Working Group also made several recommendations, including that the Pilot Rules should be permanent without any changes.
On July 16, 2021, the New York Stock Exchange (“NYSE”) proposed a rule change to make the Pilot Rules permanent, consistent with the Working Group's recommendations.
To allow time for the Commission to make its final decision on the NYSE MWCB filing, the Exchange proposes to extend the expiration date of the Pilot Rules to the end of business on April 18, 2022.
The Exchange believes that its proposal is consistent with the requirements of Sections 6(b)
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning when and how to halt trading in all stocks as a result of extraordinary market volatility. Based on the foregoing, the Exchange believes the benefits to market participants from the MWCB under Rule 11.280(a) through (d) and (f) should continue on a pilot basis because the MWCB will promote fair and orderly markets, and protect investors and the public interest.
IEX does not believe that the proposed rule change implicates any competitive issues because the proposal would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Commission reviews NYSE's proposed rule change to make the Pilot Rules permanent.
Further, IEX understands that the other SROs will file proposals to extend their rules regarding the MWCB pilot. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
Written comments were neither solicited nor received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of 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 under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
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-IEX-2022-01 and should be submitted on or before April 13, 2022.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 10, 2021, The Nasdaq Stock Market LLC (“Nasdaq” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Nasdaq Rule 5300, 5400, and 5500 series set forth the initial listing requirements for a Company
According to the Exchange, both Nasdaq Rules 5815(d)(4)(A) and (B) set forth the process by which Staff will issue a Staff Delisting Determination for a Company that fails to maintain compliance with one or more listing standards within one year of having regained compliance pursuant to an exception granted by a Hearings Panel.
Nasdaq Rule 5815(d)(4)(B) currently states “[i]f a Hearings Panel has not opted to monitor a Company that has regained compliance with the listing standards requiring the Company to maintain certain levels of stockholders' equity, to timely file periodic reports, or with the bid price requirement where the Company was ineligible for a compliance period under Rule 5810(c)(3)(A)(iii) or (iv) and within one-year of the date the Company regained compliance with such listing standard, the Listing Qualifications Department finds the Company again out of compliance with the requirement that was the subject of the exception, then, notwithstanding Rule 5810(c)(2), the Listing Qualifications Department will not allow the Company to provide it with a plan of compliance or grant additional time for the Company to regain compliance. Rather, the Listing Qualifications Department will promptly issue a Staff Delisting Determination, and the Company may request review by a Hearings Panel. The Hearings Panel will consider the Company's compliance history when rendering its Decision.”
The Exchange has proposed to clarify Nasdaq Rule 5815(d)(4) in several ways. First, the Exchange proposes to clarify that the use of a Hearings Panel Monitor is discretionary if a Company qualifies for monitoring under Nasdaq Rule 5815(d)(4)(A), but the use of a Hearings Panel Monitor is mandatory if a Company qualifies for monitoring under Nasdaq Rule 5815(d)(4)(B). Specifically, the Exchange proposes to modify Nasdaq Rule 5815(d)(4)(A) by adding the word “Discretionary” to the heading of Nasdaq Rule 5815(d)(4)(A) to make clear that the Hearings Panel Monitor under that provision is discretionary, and to retitle Nasdaq Rule 5815(d)(4)(B) to “Mandatory Hearings Panel” to make clear that a Hearings Panel Monitor under that provision is mandatory. In addition, the Exchange proposes to further modify Nasdaq Rule 5815(d)(4)(B) to make explicit the mandatory nature of appointing a Hearings Panel Monitor by stating in the rule that after having been granted an exception to the requirement to maintain certain levels of stockholders' equity, to timely file periodic reports, or with the bid price requirement where the Company was ineligible for a compliance period under Nasdaq Rule 5810(c)(3)(A)(iii) or (iv), a “Hearings Panel will impose a Hearings Panel Monitor for a period of one year from the date the company regains compliance” with those three specific listing requirements in Rule 5815(d)(4)(B).
The Exchange proposes to further clarify Nasdaq Rules 5815(d)(4)(A) and (B) by amending those rules to clearly state that under both paragraphs (A) and (B) of the rule, if a Company falls out of compliance with the listing standard deficiency that was the subject of the exception granted by the Listing Qualifications Department during the one-year monitoring period, the Company will not be afforded an applicable cure or compliance period pursuant to Nasdaq Rule 5810(c)(3), nor as currently provided by the rule be permitted to provide the Listing Qualifications Department with a plan of compliance under Nasdaq Rule 5810(c)(2). The Exchange represented that while the original language in both Nasdaq Rule 5815(d)(4)(A) and (B) included language regarding Staff's inability to afford a Company under a Hearings Panel Monitor a cure or compliance period, the current rules do not specifically include a reference to Nasdaq Rule 5810(c)(3) itself.
The Exchange also proposes to add a new paragraph (C) to Nasdaq Rule 5815(d)(4), which will set out the procedures for a Hearings Panel Monitor that is appointed under either paragraphs (A) or (B) of Nasdaq Rule 5815(d)(4), in the event the Company receives a Staff Delisting Determination during the one-year monitoring period. Pursuant to proposed Nasdaq Rule 5815(d)(4)(C), if a Company receives a Staff Delisting Determination during the one-year period under paragraph (d)(4)(A) or (B) of Nasdaq Rule 5815(d)(4), the Company may request review by a Hearings Panel. Unless subparagraph (C) indicates otherwise, the hearing will be conducted in accordance with the procedures outlined in Nasdaq Rule 5815. Upon a request for a hearing by the Company, the Hearings Department will promptly schedule a new hearing with the initial Hearings Panel or a newly convened Hearings Panel if the initial Hearings Panel is unavailable. The hearing may be oral or written, at the Company's election and the Hearings Panel will consider the Company's compliance
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Exchange proposes to clarify when a Hearings Panel Monitor is discretionary or mandatory under paragraphs (A) and (B) of Nasdaq Rule 5815(d)(4) by adding the specific terms “Discretionary” and “Mandatory” to the title of Nasdaq Rule 5815(d)(4)(A) and (B), respectively. The Commission notes that Nasdaq Rule 5815(d)(4)(B) is currently titled “No Hearings Panel Monitor”; despite this current title, and the current rule language, the Exchange represented that “the rule itself actually outlines a process of a mandatory Hearings Panel Monitor.”
The Exchange also proposes to clarify that if a Company falls out of compliance with the listing standard deficiency that was the subject of the exception granted by the Listing Qualifications Department during the one-year monitoring period under either Nasdaq Rule 5815(d)(4)(A) or (B), the Company will not be afforded an applicable cure or compliance period pursuant to Nasdaq Rule 5810(c)(3). The current rule language states that the Company will not be permitted to provide the Listing Qualifications Department with a plan of compliance notwithstanding Nasdaq Rule 5810(c)(2) and that the Company cannot be granted any additional time to regain compliance. While the current rule does prohibit any extension of time, the Exchange stated that specifically referencing Rule 5810(c)(3) will avoid any potential confusion.
Finally, the Exchange proposed to create a new paragraph (C) to Nasdaq Rule 5815(d)(4) which will outline how a Company may seek an appeal of a Staff Delisting Determination. Pursuant to the Rule, if a Company receives a Staff Delisting Determination during a one-year Hearings Panel Monitor under Nasdaq Rule 5815 (d)(4)(A) or (B), the Company may request review by a Hearings Panel. The Hearings Department will schedule a hearing with the original Hearings Panel or a new Hearings Panel if the original Hearings Panel is unavailable, the hearing may be written or oral, and the Hearings Panel will consider the Company's compliance history when rendering its decision. Nasdaq Rule 5815(d)(4)(C) also provides that unless specifically addressed in the Rule, the procedures for requesting and preparing for a review by a Hearings Panel will continue to be governed by Nasdaq Rule 5815. The Commission believes that it is consistent with the Act to combine the procedures that a Company must follow to request a hearing after receiving a Staff Delisting Determination into one paragraph of Nasdaq Rule 5815(d)(4). Currently, the procedures for requesting a hearing following a Staff Delisting Determination are set forth in either or both paragraphs (A) and (B) of Rule 5815(d)(4). While both paragraphs address such hearings, the differences in the description of and procedures for
As the Commission has previously noted, the development and enforcement of meaningful listing standards
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
The Exchange proposes to amend the Exchange's transaction credits at Equity 7, Section 118, as described further below.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend the Exchange's schedule of fees and credits, at Equity 7, Sections 114 and 118 to establish pricing for orders executed in the new Extended Trading Close or “ETC,” which the Commission approved earlier this year.
As set forth in Rule 4755, the Extended Trading Close will allow Participants an additional opportunity to access liquidity in Nasdaq-listed securities at the Nasdaq Official Closing Price for a five minute period of time after the Nasdaq Closing Cross
As noted above, two types of orders may participate in the ETC: (1) ETC Eligible Limit-on-Close (“LOC”) Orders; and (2) Extended Trading Close (“ETC”) Orders. As set forth in Rule 4702(b)(12), ETC Eligible LOC Orders are LOC Orders that are eligible to, and by default are designated to participate in the ETC
The Exchange now proposes to amend Equity 7, Section 118 to adopt fees for ETC Eligible LOC Orders and ETC Orders that execute in the ETC. In short, the Exchange proposes to charge the same fees to execute ETC Eligible Orders as it does to execute ordinary LOC Orders (and Market on Close (“MOC”) Orders) in the Closing Cross.
Equity 7, Section 118(d) governs pricing for orders executed in the Nasdaq Closing Cross. It provides for a system of tiered fees for MOC and LOC Orders executed in the Closing Cross. These tiers are as follows:
The Exchange proposes to amend this tier schedule so that its fees also apply to executions of ETC Eligible LOC Orders and ETC Orders in the ETC. For example, if at the end of a month, a member provides liquidity on Nasdaq that represents 1.20% of Consolidated Volume and/or provides MOC or LOC volume in the Nasdaq Closing Cross amounting to 0.40% of Consolidated Volume, then the member would qualify for Tier B pricing of $0.0011 per share executed for both its LOC and MOC Orders executed in the Nasdaq Closing Cross and its ETC Eligible LOC Orders and ETC Orders executed in the ETC.
Under the proposal, shares in ETC Eligible LOC Orders and ETC Orders will not count towards determining a participant's qualification for any of the fee or credit tiers in Section 118(a) or 118(d). Likewise, the Exchange proposes to amend Equity 7, Section 114(a) to
The Exchange's proposal is reasonable to adopt the same execution fees for ETC Eligible LOC Orders and ETC Orders that execute in the ETC as it charges for ordinary LOC and MOC Orders that execute in the Nasdaq Closing Cross because the ETC will act as an extension of the Closing Cross. That is, ordinary LOC Orders which do not execute fully in the Nasdaq Closing Cross will become eligible automatically for participation in the ETC as an ETC Eligible LOC Order (unless a member opts out of such participation), and if such ETC Eligible LOC Orders execute in the ETC, then they will do so at the Nasdaq Official Closing Price, as determined by the Nasdaq Closing Cross. Given the close relationship between LOC Orders that execute in the Nasdaq Closing Cross, and those that execute in the ETC, the Exchange believes that it is logical for the same fee structure to apply to each of them. The Exchange also believes that this same price structure is appropriate for ETC Orders that execute in the ETC because this structure is simple for participants and properly calibrates incentives to participate in the ETC so that they are neither too high nor too low. The Exchange does not wish for ETC Order execution fees to be too high, lest it will discourage participation in the ETC in favor of competing on- and off-exchange mechanisms that also allow for participants to execute orders at the Nasdaq Closing Cross price. The Exchange also does not wish for the fees to be too low, lest it may discourage participation in the Nasdaq Closing Cross.
Similarly, the Exchange believes it is reasonable to exclude ETC Eligible LOC and ETC Orders from determining a participant's qualification for any of the MOC or LOC based fee tiers in Equity 7, Sections 114, 118(a), and 118(d). Again, the Exchange does not wish to provide undue incentives to participate in the ETC that might occur at the expense of participation in the Nasdaq Closing Cross.
The Exchange notes that those participants that are dissatisfied with the proposed fees are free to shift their order flow to competing on- and off-exchange venues that also enable participants to execute their orders at the Nasdaq Closing Cross price or to simply opt against participating in the ETC.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposal is reasonable in several respects. As a threshold matter, the Exchange is subject to significant competitive forces in the market for equity securities transaction services that constrain its pricing determinations in that market. The fact that this market is competitive has long been recognized by the courts. In
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Numerous indicia demonstrate the competitive nature of this market. For example, clear substitutes to the Exchange exist in the market for equity security transaction services. The Exchange is only one of several equity venues to which market participants may direct their order flow. Competing equity exchanges offer similar tiered pricing structures to that of the Exchange, including schedules of rebates and fees that apply based upon members achieving certain volume thresholds.
The Exchange believes it reasonable to adopt the same execution fees for ETC Eligible LOC Orders and ETC Orders that execute in the ETC as it charges for ordinary LOC and MOC Orders that execute in the Nasdaq Closing Cross because the ETC will act as an extension of the Closing Cross. That is, ordinary LOC Orders which do not execute fully in the Nasdaq Closing Cross will become eligible automatically for participation in the ETC as an ETC Eligible LOC Order (unless a member opts out of such participation), and if such ETC Eligible LOC Orders execute in the ETC, then they will do so at the Nasdaq Official Closing Price, as determined by the Nasdaq Closing Cross. Given the close relationship between LOC Orders that execute in the Nasdaq Closing Cross, and those that execute in the ETC, the Exchange believes that it is logical for the same fee structure to apply to each of them. The Exchange also believes that this same price structure is appropriate for ETC Orders that execute in the ETC because this structure is simple for participants and properly calibrates incentives to participate in the ETC so that they are neither too high nor too low. The Exchange does not wish for ETC Order execution fees to be too high, lest it will discourage participation in the ETC in favor of competing on- and off-exchange mechanisms that also allow for participants to execute orders at the Nasdaq Closing Cross price. The Exchange also does not wish for the fees to be too low, lest it may discourage participation in the Nasdaq Closing Cross.
Similarly, the Exchange believes it is reasonable to exclude ETC Eligible LOC and ETC Orders from determining a participant's qualification for any of the
The Exchange notes that those participants that are dissatisfied with the proposed fees are free to shift their order flow to competing on- and off-exchange venues that also enable participants to execute their orders at the Nasdaq Closing Cross price or to simply opt against participating in the ETC.
The Exchange believes its proposal will allocate its charges and credits fairly among its market participants.
The Exchange believes that its proposed fees for ETC executions is an equitable allocation. The proposed fees are consistent with those it presently charges for MOC and LOC Orders that execute in the Nasdaq Closing Cross. Given the close relationship between LOC Orders that execute in the Nasdaq Closing Cross, and those that execute in the ETC, the Exchange believes that it is logical for the same fee structure to apply to each of them. The Exchange also believes that this same price structure is appropriate for ETC Orders that execute in the ETC because this structure is simple for participants and properly calibrates incentives to participate in the ETC so that they are neither too high nor too low. The Exchange does not wish for ETC Order execution fees to be too high, lest it will discourage participation in the ETC. The Exchange also does not wish for the fees to be too low, lest it may discourage participation in the Nasdaq Closing Cross.
For similar reasons, it is equitable to exclude ETC Eligible LOC and ETC Orders from determining a participant's qualification for any of the MOC or LOC based fee tiers in Equity 7, Sections 114, 118(a), and 118(d). Again, the Exchange does not wish to provide undue incentives to participate in the ETC that might occur at the expense of participation in the Nasdaq Closing Cross.
The Exchange notes that those participants that are dissatisfied with the proposed fees are free to shift their order flow to competing on- and off-exchange venues that also enable participants to execute their orders at the Nasdaq Closing Cross price or to simply opt against participating in the ETC.
The Exchange believes that its proposal is not unfairly discriminatory. As an initial matter, the Exchange believes that nothing about its volume-based tiered pricing model is inherently unfair; instead, it is a rational pricing model that is well-established and ubiquitous in today's economy among firms in various industries—from co-branded credit cards to grocery stores to cellular telephone data plans—that use it to reward the loyalty of their best customers that provide high levels of business activity and incent other customers to increase the extent of their business activity. It is also a pricing model that the Exchange and its competitors have long employed with the assent of the Commission. It is fair because it enhances price discovery and improves the overall quality of the equity markets.
The Exchange also believes that its proposal is not unfairly discriminatory because the proposed tiered ETC execution fees already apply to members that execute MOC and LOC Orders in the Nasdaq Closing Cross, and thus are familiar and understood. Moreover, the fee tiers are accessible to any Nasdaq member that engages in qualifying activity on Nasdaq or that chooses to grow the extent of that activity to qualify for a more favorable tier.
Again, any participants that are dissatisfied with the proposed fees are free to shift their order flow to competing on- and off-exchange venues that also enable participants to execute their orders at the Nasdaq Closing Cross price or to simply opt against participating in the ETC.
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 does not believe that its proposal will place any category of Exchange participant at a competitive disadvantage.
As noted above, the Exchange's proposed pricing for ETC executions is intended to be consistent with its pricing for LOC and MOC Closing Cross executions due to similarities in the two mechanisms and the desire to properly calibrate incentives to spur member participation in each of them. The Exchange notes that its members are free to trade on other venues, or to not participate in the ETC, to the extent they believe that the proposed fees are not attractive.
In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its credits and fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own credits and fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which credit or fee changes in this market may impose any burden on competition is extremely limited. The proposal is reflective of this competition. Any participant that is dissatisfied with the proposal is free to shift their order flow to competing on- and off-exchange venues that also enable participants to execute their orders at the Nasdaq Closing Cross price or to simply opt against participating in the ETC.
Even as one of the largest U.S. equities exchanges by volume, the Exchange has less than 20% market share, which in most markets could hardly be categorized as having enough market power to burden competition. Moreover, as noted above, price competition between exchanges is fierce, with liquidity and market share moving freely between exchanges in reaction to fee and credit changes. This is in addition to free flow of order flow to and among off-exchange venues which comprises upwards of 50% of industry volume.
In sum, if the change proposed herein is unattractive to market participants, it is likely that the Exchange will lose market share as a result. Accordingly, the Exchange does not believe that the proposed change will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to Harmonize various processes under Options 3, Section 20 across the affiliated Nasdaq options exchanges.
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 harmonize its existing processes with those of its affiliate Nasdaq Phlx LLC (“Phlx”) concerning the review of decisions on appeal under Options 3, Section 20. The Exchange also proposes a number of non-substantive changes. Each change is discussed in detail below.
Today, Options 3, Section 20(k) governs the appeal process for determinations by Exchange staff made under this Rule, including obvious error determinations. Specifically, if a Member affected by a determination under this Rule so requests within the permitted time period, an Exchange Review Council panel will review decisions made by the Official under Options 3, Section 20, including whether an obvious error occurred and whether the correct determination was made. A request for review on appeal must be made in writing via email or other electronic means specified from time to time by the Exchange in an Options Trader Alert distributed to Members within thirty (30) minutes after the party making the appeal is given notification of the initial determination being appealed. The
The Exchange proposes generally to maintain its current appeal process with certain adjustments to harmonize its process with that of its affiliate, Phlx. First, while Phlx similarly requires the parties to submit a request for review within thirty (30) minutes of being notified of the determination being appealed, Phlx also provides parties with additional time to submit their request if the notification occurs later in the trading day. In particular, if the notification is made after 3:30 p.m. Eastern Time, either party has until 9:30 a.m. Eastern Time on the next trading day to submit a request for review.
Second, the Exchange proposes to amend its provisions for when the Exchange Review Council panel must render a decision on requests for appeal by harmonizing to Phlx's process. Specifically, the Exchange proposes in Options 3, Section 20(k)(2) that the Exchange Review Council panel shall review the facts and render a decision on the day of the transaction, or the next trade day in the case where a request is properly made after 3:30 p.m. on the day of the transaction or where the request is properly made the next trade day.
Third, the Exchange proposes to decrease the Appeal Fee from $5,000 to $500 to align to Phlx's Appeal Fee.
In Options 3, Section 20(b)(1), the Exchange proposes a non-substantive, clarifying change to replace the reference to “opening rotation” to “Opening Process,” and specify that the Opening Process is defined in Options 3, Section 8. The Exchange will also correct a punctuation error in this section.
The Exchange also proposes non-substantive changes to replace references to “Market Control” with “Official”
Lastly, the Exchange proposes non-substantive, conforming amendments to Options 3, Section 1 (Days and Hours of Business). The Exchange first proposes to amend the title from “Days and Hours of Business” to “Hours of Business.” The Exchange recently filed to establish General 3, Section 1030, which governs the days the Exchange will be open for business.
“The Exchange shall be open for business as provided within General 3, Rule 1030.” This proposed text will make clear that while General 3, Section 1030 governs the days the Exchange will be open for business, the remainder of the rule addresses the hours of operation of the System and specific products. The Exchange also proposes to remove paragraph (e) as holidays are addressed within General 3, Section 1030. The remainder of the paragraphs are proposed to be re-lettered.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange further believes that its proposal to amend the current appeal process to harmonize with Phlx's appeal process is consistent with the Act because it will continue to afford Members with due process in connection with decisions made by Officials under Options 3, Section 20 that the Member may feel warrants review. As discussed above, the proposal would allow either party until 9:30 a.m. the next trading to submit a request for review if notification is made after 3:30 p.m., which the Exchange believes will be helpful for Members in submitting their appeal requests in a timely manner. Furthermore, the proposal provides the Exchange Review Council panel additional time and flexibility to render decisions on requests for appeal in cases where a
Ultimately, the proposed changes to the appeal process are intended to align certain time frames and the Appeal Fee with those of its affiliates in order to provide more consistent rules and procedures across the affiliated options exchanges owned by Nasdaq, Inc. Consistent rules and procedures, in turn, would simplify and streamline the regulatory requirements and increase the understanding of the Exchange's operations for Members of the Exchange that are also members on the Exchange's affiliated options exchanges. Greater harmonization across the affiliated options exchanges will result in greater uniformity, rules that are easier to follow and understand, and more efficient regulatory compliance, thereby contributing to the protection of investors and the public interest. As such, the proposed rule change would foster cooperation and coordination with persons engaged in facilitating transactions in securities and would remove impediments to and perfect the mechanism of a free and open market and a national market system.
The Exchange further believes that the proposed non-substantive changes in Options 3, Section 20 to replace all instances of Market Control with Official, and to replace opening rotation with Opening Process, will add clarity, transparency, and consistency to the Exchange's rules. Lastly, the Exchange's proposal to amend Options 3, Section 1 (Days and Hours of Business) as described above will bring greater clarity, and ensure that this Rule conforms to the changes made in the recent filing to establish General 3, Section 1030, which governs the days the Exchange will be open for business.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
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 changes are designed to provide greater harmonization among similar rules and processes across the Exchange's affiliated options exchanges, resulting in more efficient regulatory compliance for common members.
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 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.
You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-GEMX-2022-05 and should be submitted on or before April 13, 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 proposes to harmonize its processes and procedures under Options 3, Section 20 with those of its affiliated options exchange.
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 harmonize its existing processes for the review of decisions on appeal under Options 3, Section 20 with those of its affiliate Nasdaq Phlx LLC (“Phlx”).
Today, Options 3, Section 20(k) governs the appeal process for determinations by Exchange staff made under this Rule, including obvious error determinations. Specifically, a party to a transaction affected by a decision made under this section may appeal that decision to the Exchange Review Council. An appeal must be made in writing, and must be received by the Exchange within thirty (30) minutes after the person making the appeal is given the notification of the determination being appealed.
The Exchange proposes generally to maintain its current appeal process with certain additions to harmonize its process with that of its affiliate, Phlx. First, while Phlx similarly requires the parties to submit a request for review within thirty (30) minutes of being notified of the determination being appealed, Phlx also provides parties with additional time to submit their request if the notification occurs later in the trading day. In particular, if the notification is made after 3:30 p.m. Eastern Time, either party has until 9:30 a.m. Eastern Time on the next trading day to submit a request for review.
Second, the Exchange proposes to add a provision for when the Exchange Review Council panel must render a decision on requests for appeal to harmonize to Phlx's process. Specifically, the Exchange proposes in Options 3, Section 20(k) that the Exchange Review Council panel shall review the facts and render a decision on the day of the transaction, or the next trade day in the case where a request is properly made after 3:30 p.m. on the day of the transaction or where the request is properly made the next trade day.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that its proposal to amend the current appeal process to harmonize with Phlx's appeal process is consistent with the Act because it will continue to afford Participants with due process in connection with decisions made by Officials under Options 3, Section 20 that the Participant may feel warrants review. As discussed above, the proposal would allow either party until 9:30 a.m. the next trading to submit a request for review if notification is made after 3:30 p.m., which the Exchange believes will be helpful for Participants in submitting their appeal requests in a timely manner. Furthermore, the proposal provides the Exchange Review Council panel additional time and flexibility to render decisions on requests for appeal in cases where a request is properly made after 3:30 p.m. on the day of the transaction or where the request is properly made the next trade day, and is designed to reduce administrative burden on the Exchange.
Ultimately, the proposed changes to the appeal process are intended to align certain time frames with those of its affiliate in order to provide more consistent rules and procedures across the affiliated options exchanges owned by Nasdaq, Inc. Consistent rules and procedures, in turn, would simplify and streamline the regulatory requirements and increase the understanding of the Exchange's operations for Participants of the Exchange that are also members on the Exchange's affiliated options exchanges. Greater harmonization across the affiliated options exchanges will result in greater uniformity, rules that are easier to follow and understand, and more efficient regulatory compliance, thereby contributing to the protection of investors and the public interest. As such, the proposed rule change would foster cooperation and coordination with persons engaged in facilitating transactions in securities and
For these reasons, the Exchange believes that the proposal is consistent with the Act.
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. As it relates to the proposed changes to the appeal process under Options 3, Section 20(k), the changes are designed to provide greater harmonization among similar rules and processes across the Exchange's affiliated options exchanges, resulting in more efficient regulatory compliance for common members. For these reasons, the Exchange believes that the proposed rule change reflects this competitive environment and does not impose any undue burden on intermarket competition.
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 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.
You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-BX-2022-004 and should be submitted on or before April 13, 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 proposes to amend Phlx's Pricing Schedule at Options 7, Section 4, “Multiply Listed Options Fees (Includes options overlying equities, ETFs, ETNs and indexes which are Multiply Listed) (Excludes SPY).”
The Exchange originally filed the proposed pricing changes on March 1, 2022 (SR-PHLX-2022-09). On March 10, 2022, the Exchange withdrew that filing and submitted this filing.
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
Phlx proposes to amend its Pricing Schedule within Options 7, Section 4, “Multiply Listed Options Fees (Includes options overlying equities, ETFs, ETNs and indexes which are Multiply Listed) (Excludes SPY).” Specifically, Phlx proposes to increase the Lead Market Maker
The term “Streaming Quote Trader” or “SQT” is defined in Options 1, Section 1(b)(54) as a Market Maker who has received permission from the Exchange to generate and submit option quotations electronically in options to which such SQT is assigned. See Phlx's Pricing Schedule at Options 7, Section 1(c). The term “Remote Streaming Quote Trader” or “RSQT” is defined in Options 1, Section 1(b)(49) as a Market Maker that is a member affiliated with an RSQTO with no physical trading floor presence who has received permission from the Exchange to generate and submit option quotations electronically in options to which such RSQT has been assigned. A Remote Streaming Quote Trader Organization or “RSQTO,” which may also be referred to as a Remote Market Making Organization (“RMO”), is a member organization in good standing that satisfies the RSQTO readiness requirements in Options 2, Section 1(a). See Phlx's Pricing Schedule at Options 7, Section 1(c).
The Floor Based Management System or “FBMS” is an order management system and the gateway for the electronic execution of equity, equity index and U.S. dollar-settled foreign currency option orders represented by Floor Brokers on the Exchange's Options Floor. Floor Brokers contemporaneously upon receipt of an order and prior to the representation of such an order in the trading crowd, record all options orders represented by such Floor Broker to FBMS, which creates an electronic audit trail. The execution of orders to Phlx's electronic trading system also occurs via FBMS. The FBMS application is available on hand-held tablets and stationary desktops.
Today, the Exchange assesses Options Transaction Charges in Multiply Listed options, including options overlying equities, ETFs, ETNs and indexes and excluding options in SPY.
The Exchange proposes to increase the Floor Lead Market Maker and Floor Market Maker Options Transaction Charges in Penny and non-Penny Symbols from $0.35 to $0.50 per contract and pay a Floor Broker
The Exchange believes that assessing a Floor Lead Market Maker and a Floor Market Maker an increased fee of $0.15 per contract (increase from $0.35 to $0.50 per contract) and paying a Floor Broker a rebate of $0.15 per contract will incentivize Floor Brokers to attract a greater number of orders to Phlx's Trading Floor and allow Floor Lead Market Makers and Floor Market Makers to interact with those orders.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Likewise, in
Further, “[n]o one disputes that competition for order flow is `fierce.' . . . As the SEC explained, `[i]n the U.S. national market system, buyers and sellers of securities, and the broker-dealers that act as their order-routing agents, have a wide range of choices of where to route orders for execution'; [and] `no exchange can afford to take its market share percentages for granted' because `no exchange possesses a monopoly, regulatory or otherwise, in the execution of order flow from broker dealers'. . . .”
The Exchange's proposal to increase the Floor Lead Market Maker and the Floor Market Maker Options Transaction Charges in multiply-listed Penny and non-Penny Symbols from $0.35 to $0.50 per contract and pay a Floor Broker a new $0.15 per contract rebate when a Floor Broker executes an order contra a Floor Lead Marker Maker or a Floor Market Maker in open outcry in multiply-listed Penny or non-Penny Symbols is reasonable. The Exchange desires to offer a $0.15 per contract rebate to the executing Floor Broker to attract additional order flow to the Phlx Trading Floor. A similar flat rebate is offered to Floor Brokers on BOX Exchange LLC (“BOX”).
Today, market participants may send order flow to the Trading Floor by either investing in technology, systems and personnel to participate on the Trading Floor, or utilizing the services of a Floor Broker. Offering the proposed rebate to Floor Brokers will allow Floor Brokers to price their services at a level that would enable them to attract additional order flow to the Exchange. To the extent Floor Brokers are able to attract additional orders; they will gain important information that would allow them to solicit future orders for participation in other trades. This will in turn, benefit other Exchange participants through additional liquidity on the Trading Floor with which they may interact. Finally, the Exchange believes that the rebate will promote competition by allowing Floor Brokers to competitively price their services and for the Exchange to remain competitive with other exchanges.
The Exchange's proposal to increase the Floor Lead Market Maker and the Floor Market Maker Options Transaction Charges in multiply-listed Penny and non-Penny Symbols from $0.35 to $0.50 per contract and pay a Floor Broker a new $0.15 per contract rebate when a Floor Broker executes an order contra a Floor Lead Marker Maker or a Floor Market Maker in open outcry in multiply-listed Penny or non-Penny Symbols is equitable and not unfairly discriminatory. The Exchange believes it is equitable and not unfairly discriminatory to only apply the rebate to Floor Brokers and not to Floor Lead Market Makers and Floor Market Makers. Floor Lead Market Makers and Floor Market Makers only represent their own interest on the Trading Floor and therefore do not need a similar incentive. Unlike Floor Lead Market Makers and Floor Market Makers, Floor Brokers act as agents in representing orders on the Exchange's Trading Floor. They serve a valuable function in open outcry in allowing market participants to have their orders represented in this venue without the need to be a member of the Exchange.
The Exchange believes that its proposal to not pay a rebate when an order is executed electronically or for orders that are singly listed options, index options, FLEX Options, strategy transactions, and Floor QCC Orders is reasonable, equitable and not unfairly discriminatory as pricing for these types of transactions are specified separately from Floor Options Transaction Charges within Options 7, Section 4 of the Pricing Schedule.
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 proposal does not impose an undue burden on inter-market competition. The Exchange believes its proposal remains competitive with other options markets and will offer market participants with another choice of where to transact options. The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
Moreover, the proposal is designed to encourage Floor Brokers to attract a greater amount of order flow to Phlx's Trading Floor. To the extent that the proposed change attracts additional order flow to Phlx's Trading Floor, this increased order flow would continue to make the Exchange a more competitive venue for order execution.
The proposed amendments do not impose an undue burden on intra-market competition.
The Exchange's proposal to increase the Floor Lead Market Maker and the Floor Market Maker Options Transaction Charges in multiply-listed Penny and non-Penny Symbols from $0.35 to $0.50 per contract and pay a Floor Broker a new $0.15 per contract rebate when a Floor Broker executes an order contra a Floor Lead Marker Maker or a Floor Market Maker in open outcry in multiply-listed Penny or non-Penny Symbols does not impose an undue burden on competition. Only applying a rebate to Floor Brokers and not to Floor Lead Market Makers and Floor Market Makers does not impose an undue burden on competition because Floor Lead Market Makers and Floor Market Makers only represent their own interest on the Trading Floor and therefore do not need a similar incentive. Unlike Floor Lead Market Makers and Floor Market Makers, Floor Brokers act as agents in representing orders on the Exchange's Trading Floor. They serve a valuable function in open outcry in allowing market participants to have their orders represented in this venue without the need to be a member of the Exchange. Further, Floor Lead Market Makers and Floor Market Makers benefit from having access to interact with orders that are made available in open outcry on the Trading Floor. Floor Lead Market Makers and Floor Market Makers may choose to conduct their business on the Trading Floor or in an electronic market, unlike Floor Brokers, who have a business model that is naturally tied to the physical trading space. The Exchange believes that assessing Floor Lead Market Makers and Floor Market Makers a higher Options Transaction Charge does not impose an undue burden on competition because they have the benefit of trading on a Trading Floor or in an electronic venue if they so choose. The proposed $0.50 Options Transaction Charge for Floor Lead Market Makers and Floor Market Makers and the $0.15 per contract rebate for Floor Brokers will be uniformly assessed and paid, respectively, to all Floor Lead Market Makers, Floor Market Makers, and Floor Brokers participating in open outcry trades in multiply-listed Penny and non-Penny symbols.
The Exchange believes that its proposal to not pay a rebate when an order is executed electronically or for orders that are singly listed options, index options, FLEX Options, strategy transactions, and Floor QCC Orders does not impose an undue burden on competition as pricing for these types of transactions are specified separately from Floor Options Transaction Charges within Options 7, Section 4 of the Pricing Schedule.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to harmonize various processes under Options 3, Section 20 across the affiliated Nasdaq options exchanges.
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 harmonize its existing processes with those of its affiliate Nasdaq Phlx LLC (“Phlx”) concerning the review of decisions on appeal under Options 3, Section 20. The Exchange also proposes a number of non-substantive changes. Each change is discussed in detail below.
Today, Options 3, Section 20(k) governs the appeal process for determinations by Exchange staff made under this Rule, including obvious error determinations. Specifically, if a Member affected by a determination under this Rule so requests within the permitted time period, an Exchange Review Council panel will review decisions made by the Official under Options 3, Section 20, including whether an obvious error occurred and whether the correct determination was made. A request for review on appeal must be made in writing via email or other electronic means specified from time to time by the Exchange in an Options Trader Alert distributed to Members within thirty (30) minutes after the party making the appeal is given notification of the initial determination being appealed. The Exchange Review Council panel shall review the facts and render a decision as soon as practicable, but generally on the same trading day as the execution(s) under review. On requests for appeal received after 3:00 p.m. Eastern Time, a decision will be rendered as soon as practicable, but in no case later than the trading day following the date of the execution under review. Furthermore, if the Exchange Review Council panel votes to uphold the decision made under this Rule, the Exchange will assess a fee (“Appeal Fee”) of $5,000 against the Member(s) who initiated the request for appeal.
The Exchange proposes generally to maintain its current appeal process with certain adjustments to harmonize its process with that of its affiliate, Phlx. First, while Phlx similarly requires the parties to submit a request for review within thirty (30) minutes of being notified of the determination being appealed, Phlx also provides parties with additional time to submit their request if the notification occurs later in the trading day. In particular, if the notification is made after 3:30 p.m. Eastern Time, either party has until 9:30 a.m. Eastern Time on the next trading day to submit a request for review.
Second, the Exchange proposes to amend its provisions for when the Exchange Review Council panel must render a decision on requests for appeal by harmonizing to Phlx's process. Specifically, the Exchange proposes in Options 3, Section 20(k)(2) that the Exchange Review Council panel shall review the facts and render a decision on the day of the transaction, or the next trade day in the case where a request is properly made after 3:30 p.m. on the day of the transaction or where the request is properly made the next trade day.
Third, the Exchange proposes to decrease the Appeal Fee from $5,000 to $500 to align to Phlx's Appeal Fee.
In Options 3, Section 20(b)(1), the Exchange proposes a non-substantive, clarifying change to replace the reference to “opening rotation” to “Opening Process,” and specify that the Opening Process is defined in Options 3, Section 8. The Exchange will also correct a punctuation error in this section.
The Exchange also proposes non-substantive changes to replace references to “Market Control” with “Official”
Lastly, the Exchange proposes non-substantive, conforming amendments to Options 3, Section 1 (Days and Hours of Business). The Exchange first proposes to amend the title from “Days and Hours of Business” to “Hours of Business.” The Exchange recently filed to establish General 3, Section 1030, which governs the days the Exchange will be open for business.
“The Exchange shall be open for business as provided within General 3, Rule 1030.” This proposed text will make clear that while General 3, Section 1030 governs the days the Exchange will be open for business, the remainder of the rule addresses the hours of operation of the System and specific products. The Exchange also proposes to remove paragraph (e) as holidays are addressed within General 3, Section 1030. The remainder of the paragraphs are proposed to be re-lettered.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange further believes that its proposal to amend the current appeal process to harmonize with Phlx's appeal process is consistent with the Act because it will continue to afford Members with due process in connection with decisions made by Officials under Options 3, Section 20 that the Member may feel warrants review. As discussed above, the proposal would allow either party until 9:30 a.m. the next trading to submit a request for review if notification is made after 3:30 p.m., which the Exchange believes will be helpful for Members in submitting their appeal requests in a timely manner. Furthermore, the proposal provides the Exchange Review Council panel additional time and flexibility to render decisions on requests for appeal in cases where a request is properly made after 3:30 p.m. on the day of the transaction or where the request is properly made the next trade day, and is designed to reduce administrative burden on the Exchange. As it relates to the Appeal Fee, the Exchange believes that the proposed reduction of the fee from $5,000 to $500 is reasonable, equitable and not unfairly discriminatory because it aligns to the Appeal Fee assessed by its affiliates
Ultimately, the proposed changes to the appeal process are intended to align certain time frames and the Appeal Fee with those of its affiliates in order to provide more consistent rules and procedures across the affiliated options exchanges owned by Nasdaq, Inc. Consistent rules and procedures, in turn, would simplify and streamline the regulatory requirements and increase the understanding of the Exchange's operations for Members of the Exchange that are also members on the Exchange's affiliated options exchanges. Greater harmonization across the affiliated options exchanges will result in greater uniformity, rules that are easier to follow and understand, and more efficient regulatory compliance, thereby contributing to the protection of investors and the public interest. As such, the proposed rule change would foster cooperation and coordination with persons engaged in facilitating transactions in securities and would remove impediments to and perfect the mechanism of a free and open market and a national market system.
The Exchange further believes that the proposed non-substantive changes in Options 3, Section 20 to replace all instances of Market Control with Official, and to replace opening rotation with Opening Process, will add clarity, transparency, and consistency to the Exchange's rules. Lastly, the Exchange's proposal to amend Options 3, Section 1 (Days and Hours of Business) as described above will bring greater clarity, and ensure that this Rule conforms to the changes made in the recent filing to establish General 3,
For these reasons, the Exchange believes that the proposal is consistent with the Act.
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 changes are designed to provide greater harmonization among similar rules and processes across the Exchange's affiliated options exchanges, resulting in more efficient regulatory compliance for common members.
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 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.
You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-MRX-2022-03 and should be submitted on or before April 13, 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 (the “Act”),
The Exchange is filing with the Commission a proposed rule change to extend the pilot related to the market-wide circuit breaker in Rule 11.16 to the close of business on April 18, 2022. The text of the proposed rule change is provided in Exhibit 5.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the
The Exchange proposes to extend the pilot related to the market-wide circuit breaker in Rule 11.16 to the close of business on April 18, 2022.
The Market-Wide Circuit Breaker (“MWCB”) rules, which for the Exchange are contained in Exchange Rule 11.16, provide an important, automatic mechanism that is invoked to promote stability and investor confidence during periods of significant stress when cash equities securities experience extreme market-wide declines. The MWCB rules are designed to slow the effects of extreme price declines through coordinated trading halts across both cash equity and equity options securities markets.
The cash equities rules governing MWCBs were first adopted in 1988 and, in 2012, all U.S. cash equity exchanges and FINRA amended their cash equities uniform rules on a pilot basis (the “Pilot Rules,”
The Commission approved the Pilot Rules, the term of which was to coincide with the pilot period for the Plan to Address Extraordinary Market Volatility Pursuant to Rule 608 of Regulation NMS (the “LULD Plan”),
The Exchange now proposes to amend Rule 11.16 to extend the pilot to the close of business on April 18, 2022. This filing does not propose any substantive or additional changes to Rule 11.16.
In late 2019, Commission staff requested the formation of a MWCB Task Force (“Task Force”) to evaluate the operation and design of the MWCB mechanism. The Task Force included representatives from the SROs, the Commission, CME, the Commodity Futures Trading Commission (“CFTC”), and the securities industry and conducted several organizational meetings in December 2019 and January 2020.
In Spring 2020, the MWCB mechanism proved itself to be an effective tool for protecting markets through turbulent times. In March 2020, at the outset of the worldwide COVID-19 pandemic, U.S. equities markets experienced four MWCB Level 1 halts, on March 9, 12, 16, and 18, 2020. In each instance, the markets halted as intended upon a 7% drop in the S&P 500 Index, and resumed as intended 15 minutes later.
In response to these events, in the Spring and Summer of 2020, the Task Force held ten meetings that were attended by Commission staff, with the goal of performing an expedited review of the March 2020 halts and identifying any areas where the MWCB mechanism had not worked properly. Given the risk of unintended consequences, the Task Force did not recommend changes that were not rooted in a noted deficiency. The Task Force recommended creating a process for a backup reference price in the event that SPX were to become unavailable, and enhancing functional MWCB testing. The Task Force also asked CME to consider modifying its rules to enter into a limit-down state in the futures pre-market after a 7% decline instead of 5%. CME made the requested change, which became effective on October 12, 2020.
On September 17, 2020, the Director of the Commission's Division of Trading and Markets asked the SROs to conduct a more complete study of the design and operation of the Pilot Rules and the LULD Plan during the period of volatility in the Spring of 2020.
In response to the request, the SROs created a MWCB “Working Group” composed of SRO representatives and industry advisers that included members of the advisory committees to both the LULD Plan and the NMS Plans governing the collection, consolidation, and dissemination of last-sale transaction reports and quotations in NMS Stocks. The Working Group met regularly from September 2020 through March 2021 to consider the Commission's request, review data, and compile its study. The Working Group's efforts in this respect incorporated and
The Working Group submitted its study to the Commission on March 31, 2021 (the “Study”).
In the Study, the Working Group concluded: (1) The MWCB mechanism set out in the Pilot Rules worked as intended during the March 2020 events; (2) the MWCB halts triggered in March 2020 appear to have had the intended effect of calming volatility in the market, without causing harm; (3) the design of the MWCB mechanism with respect to reference value (SPX), trigger levels (7%/13%/20%), and halt times (15 minutes) is appropriate; (4) the change implemented in Amendment 10 to the Plan to Address Extraordinary Market Volatility (the “Limit Up/Limit Down Plan” or “LULD Plan”) did not likely have any negative impact on MWCB functionality; and (5) no changes should be made to the mechanism to prevent the market from halting shortly after the opening of regular trading hours at 9:30 a.m.
In light of the foregoing conclusions, the Working Group also made several recommendations, including that the Pilot Rules should be permanent without any changes.
On July 16, 2021, NYSE proposed a rule change to make the Pilot Rules permanent, consistent with the Working Group's recommendations.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning when and how to halt trading in all stocks as a result of extraordinary market volatility. Based on the foregoing, the Exchange believes the benefits to market participants from Pilot Rules should continue on a pilot basis because they will promote fair and orderly markets and protect investors and the public interest.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act because the proposal would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Commission reviews the proposed rule change to make the Pilot Rules permanent.
Further, the Exchange understands that FINRA and other national securities exchanges have already filed or will file proposals to extend their rules regarding the market-wide circuit breaker pilot. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
The Exchange neither solicited nor received comments on the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of 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 under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 15c3-4 requires certain broker-dealers that are registered with the Commission as OTC derivatives dealers, or who compute their net capital charges under Appendix E to Rule 15c3-1 (17 CFR 240.15c3-1) (“ANC firms”), to establish, document, and maintain a system of internal risk management controls. In addition, security-based swap dealers (“SBSDs”) that are subject to Rule 18a-1 (17 CFR 240.18a-1) must comply with Rule 15c3-4 as if they were OTC derivatives dealers. The Rule sets forth the basic elements for an OTC derivatives dealer, an ANC firm, or an SBSD to consider and include when establishing, documenting, and reviewing its internal risk management control system, which is designed to, among other things, ensure the integrity of an OTC derivatives dealer's, an ANC firm's or an SBSD's risk measurement, monitoring, and management process, to clarify accountability at the appropriate organizational level, and to define the permitted scope of the firm's activities and level of risk. The Rule also requires that management of an OTC derivatives dealer, an ANC firm, or an SBSD must periodically review, in accordance with written procedures, the firm's business activities for consistency with its risk management guidelines.
The staff estimates that the average amount of time a new firm subject to Rule 15c3-4 will spend establishing and documenting its risk management control system is approximately 2,000 hours (666.666667 hours per year when annualized over three years) and that, on average, an existing firm subject to Rule 15c3-4 will spend approximately 200 hours each year to maintain (
The records required to be made pursuant to the Rule and the results of the periodic reviews conducted under paragraph (d) of Rule 15c3-4 must be preserved under Rule 17a-4 of the Exchange Act (17 CFR 240.17a-4) for a period of not less than three years, the first two years in an easily accessible place. The Commission will not generally publish or make available to any person notices or reports received pursuant to the Rule. The statutory basis for the Commission's refusal to disclose such information to the public is the exemption contained in section (b)(4) of the Freedom of Information Act (5 U.S.C. 552), which essentially provides that the requirement of public dissemination does not apply to commercial or financial information which is privileged or confidential.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
On September 3, 2021, New York Stock Exchange LLC (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to issue an order approving or disapproving the proposed rule change so that it has sufficient time to consider the proposed rule change. The Commission is extending the time period for approving or disapproving the proposed rule change for an additional 60 days.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes Exhibit I Caption—Harmonize various processes under Options 3, Section 20 across the affiliated Nasdaq options exchanges.
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 harmonize its existing processes with those of its affiliate Nasdaq Phlx LLC (“Phlx”) concerning the review of decisions on appeal under Options 3, Section 20. The Exchange also proposes a number of non-substantive changes. Each change is discussed in detail below.
Today, Options 3, Section 20(k) governs the appeal process for determinations by Exchange staff made under this Rule, including obvious error determinations. Specifically, if a Member affected by a determination under this Rule so requests within the permitted time period, an Exchange Review Council panel will review decisions made by the Official under Options 3, Section 20, including whether an obvious error occurred and whether the correct determination was made. A request for review on appeal must be made in writing via email or other electronic means specified from time to time by the Exchange in an Options Trader Alert distributed to Members within thirty (30) minutes after the party making the appeal is given notification of the initial determination being appealed. The Exchange Review Council panel shall review the facts and render a decision as soon as practicable, but generally on the same trading day as the execution(s) under review. On requests for appeal received after 3:00 p.m. Eastern Time, a decision will be rendered as soon as practicable, but in no case later than the trading day following the date of the execution under review. Furthermore, if the Exchange Review Council panel votes to uphold the decision made under this Rule, the Exchange will assess a fee (“Appeal Fee”) of $5,000 against the Member(s) who initiated the request for appeal.
The Exchange proposes generally to maintain its current appeal process with certain adjustments to harmonize its process with that of its affiliate, Phlx. First, while Phlx similarly requires the parties to submit a request for review within thirty (30) minutes of being notified of the determination being appealed, Phlx also provides parties with additional time to submit their request if the notification occurs later in the trading day. In particular, if the notification is made after 3:30 p.m. Eastern Time, either party has until 9:30 a.m. Eastern Time on the next trading day to submit a request for review.
Second, the Exchange proposes to amend its provisions for when the Exchange Review Council panel must render a decision on requests for appeal by harmonizing to Phlx's process. Specifically, the Exchange proposes in Options 3, Section 20(k)(2) that the Exchange Review Council panel shall review the facts and render a decision on the day of the transaction, or the next trade day in the case where a request is properly made after 3:30 p.m. on the day of the transaction or where the request is properly made the next trade day.
Third, the Exchange proposes to decrease the Appeal Fee from $5,000 to $500 to align to Phlx's Appeal Fee.
In Options 3, Section 20(b)(1), the Exchange proposes a non-substantive, clarifying change to replace the reference to “opening rotation” to “Opening Process,” and specify that the Opening Process is defined in Options 3, Section 8. The Exchange also proposes non-substantive changes to replace references to “Market Control” with “Official”
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange further believes that its proposal to amend the current appeal process to harmonize with Phlx's appeal process is consistent with the Act because it will continue to afford Members with due process in connection with decisions made by Officials under Options 3, Section 20 that the Member may feel warrants review. As discussed above, the proposal would allow either party until 9:30 a.m. the next trading to submit a request for review if notification is made after 3:30 p.m., which the Exchange believes will be helpful for Members in submitting their appeal requests in a timely manner. Furthermore, the proposal provides the Exchange Review Council panel additional time and flexibility to render decisions on requests for appeal in cases where a request is properly made after 3:30 p.m. on the day of the transaction or where the request is properly made the next trade day, and is designed to reduce administrative burden on the Exchange. As it relates to the Appeal Fee, the Exchange believes that the proposed reduction of the fee from $5,000 to $500 is reasonable, equitable and not unfairly discriminatory because it aligns to the Appeal Fee assessed by its affiliates
Ultimately, the proposed changes to the appeal process are intended to align certain time frames and the Appeal Fee with those of its affiliates in order to provide more consistent rules and procedures across the affiliated options exchanges owned by Nasdaq, Inc. Consistent rules and procedures, in turn, would simplify and streamline the regulatory requirements and increase the understanding of the Exchange's operations for Members of the Exchange that are also members on the Exchange's affiliated options exchanges. Greater harmonization across the affiliated options exchanges will result in greater uniformity, rules that are easier to follow and understand, and more efficient regulatory compliance, thereby contributing to the protection of investors and the public interest. As such, the proposed rule change would foster cooperation and coordination with persons engaged in facilitating transactions in securities and would remove impediments to and perfect the mechanism of a free and open market and a national market system.
Lastly, the Exchange believes that the proposed non-substantive changes to replace all instances of Market Control with Official, and to replace opening rotation with Opening Process, will add clarity, transparency, and consistency to the Exchange's rules. The Exchange believes that market participants would benefit from the increased clarity, thereby reducing potential confusion, and ensuring that market participants and investors can more easily navigate and understand the Exchange's rules.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
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 changes are designed to provide greater harmonization among similar rules and processes across the Exchange's affiliated options exchanges, resulting in more efficient regulatory compliance for common members.
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 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.
You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ISE-2022-08 and should be submitted on or before April 13, 2022.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice of a modified system of records.
The information in this system of records, Risk Analysis and Management Records, supports the vetting of directors, officers, or other employees of organizations who apply for Department of State contracts, grants, cooperative agreements, or other funding; and individuals who may benefit from such funding. The information collected from these organizations and individuals is specifically used to conduct screening to ensure that Department funds are not used to provide support to entities or individuals deemed to be a risk to U.S. national security interests.
In accordance with 5 U.S.C. 552a(e)(4) and (11), this system of records notice is effective upon publication, with the exception of the routine uses (a), (b), (c), (d), and (e) that are subject to a 30-day period during which interested persons may submit comments to the Department. Please submit any comments by April 22, 2022.
Questions can be submitted by mail, email, or by calling Eric F. Stein, the Senior Agency Official for Privacy on (202) 485-2051. If mail, please write to: U.S Department of State; Office of Global Information Systems, A/GIS; Room 1417, 2201 C St. NW, Washington, DC 20520. If email, please address the email to the Senior Agency Official for Privacy, Eric F. Stein, at
Eric F. Stein, Senior Agency Official for Privacy; U.S. Department of State; Office of Global Information Services, A/GIS; Room 1417, 2201 C St. NW, Washington, DC 20520 or by calling on (202) 485-2051.
This notice is being modified to reflect new OMB guidance, changes to the categories of records and security classification. The modified system of records notice includes substantive revisions and additions to the following sections: Dates, Security Classification, System Location, Categories of Individuals Covered by the System, Categories of Records in the System, Routine Uses of Records, Retention and Disposal of Records, and Exemptions Promulgated. In addition, the Department is taking this opportunity to make minor administrative updates to the following sections: Addresses, For Further Information Contact, and History.
Risk Analysis and Management Records, State-78.
Unclassified.
Office of Risk Analysis and Management (RAM), Department of State, Washington, DC, 2201 C St. NW, Washington, DC 20520.
Director, Office of Risk Analysis and Management (RAM) 2201 C St. NW, Washington, DC 20520,
18 U.S.C. 2339A, 2339B, 2339C; 22 U.S.C. 2151
The information in the system supports the vetting of directors, officers, or other employees of organizations who apply for Department of State contracts, grants, cooperative agreements, or other funding; and individuals who may benefit from such funding. The information collected from these organizations and individuals is specifically used to conduct screening to ensure that Department funds are not used to provide support to entities or individuals deemed to be a risk to U.S. national security interests.
The system covers key personnel of organizations that have applied for contracts, grants, cooperative agreements, or other funding from the Department of State; and individuals who may benefit from such funding. These individuals may include but are not limited to principal officers or directors, program managers, chief of party for the program and other individuals employed by the organization. The Privacy Act defines an individual at 5 U.S.C. 552a(a)(2) as a United States citizen or lawful permanent resident.
Information in this system includes: Name, aliases, date and place of birth, gender (as shown in a government-issued foreign or U.S. photo ID), citizenship(s), government-issued identification information (including but not limited to Social Security number if U.S. citizen or Legal Permanent Resident, passport number, or any other numbers originated by a government that specifically identifies an individual), mailing address, telephone numbers, email, social media information, current employer organizational and project title.
Information is collected from the record subjects themselves and also from public sources, agencies conducting national security screening, law enforcement and intelligence agency records, and other government databases.
Risk Analysis and Management Records may be disclosed:
(a.) To appropriate agencies, entities, and persons when (1) the Department of State suspects or has confirmed that there has been a breach of the system of records; (2) the Department of State has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the Department of State (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 State efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
(b.) To another Federal agency or Federal entity, when the Department of State 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
(c.) To other U.S. government agencies for vetting programs.
(d.) To the Federal Bureau of Investigation, the Department of Homeland Security, the National Counter-Terrorism Center (NCTC), the Terrorist Screening Center (TSC), or other appropriate federal agencies, for the integration and use of such information to protect against terrorism, if that record is about one or more individuals known, or suspected, to be or to have been involved in activities constituting, in preparation for, in aid of, or related to terrorism. Such information may be further disseminated by recipient agencies to Federal, State, local, territorial, tribal, and foreign government authorities, and to support private sector processes as contemplated in Homeland Security Presidential Directive/HSPD-6 and other relevant laws and directives, for terrorist screening, threat-protection, and other homeland security purposes.
(e.) To a federal, state, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information, such as current licenses, if necessary, to obtain information relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit.
The Department of State periodically publishes in the
Records are stored both in hard copy and on electronic media. A description of standard Department of State policies concerning storage of electronic records is found at
Records are retrieved by name, date and place of birth, government identifying numbers (such as Social Security numbers or passport numbers), or other identifying data specified under Categories of Records in the system.
Records with no derogatory findings are purged annually; records with derogatory information are maintained for seven years. Records are retired and destroyed in accordance with published Department of State Records Disposition Schedules as approved by the National Archives and Records Administration (NARA) and outlined at
All Department of State network users are given cyber security awareness training which covers the procedures for handling Sensitive but Unclassified (SBU) information, including personally identifiable information (PII). Annual refresher training is mandatory. In addition, all Department OpenNet network users are required to take, on a biennial basis, the Foreign Service Institute distance learning course instructing employees on privacy and security requirements, including the rules of behavior for handling PII and the potential consequences if it is handled improperly. Before being granted access to Risk Analysis and Management Records, a user must first be granted access to the Department of State computer network.
Department of State employees and contractors may remotely access this system of records using non-Department-owned information technology. Such access is subject to approval by the Department's mobile and remote access program and is limited to information maintained in unclassified information systems. Remote access to the Department's information systems is configured in compliance with OMB Circular A-130 multifactor authentication requirements and includes a time-out function.
All Department of State employees and contractors with authorized access to records maintained in this system of records have undergone a thorough background security investigation. Access to the Department of State, its annexes and posts abroad is controlled by security guards and admission is limited to those individuals possessing a valid identification card or individuals under proper escort. Access to computerized files is password-protected and under the direct supervision of the system manager. The system manager has the capability of printing audit trails of access from the computer media, thereby permitting regular and ad hoc monitoring of computer usage. When it is determined that a user no longer needs access, the user account is disabled.
Individuals who wish to gain access to or to amend records pertaining to themselves should write to U.S. Department of State; Director, Office of Information Programs and Services; A/GIS/IPS; 2201 C Street NW, Room B-266; Washington, DC 20520. The individual must specify that he or she wishes the Risk Analysis and Management Records to be checked. At a minimum, the individual must include: Full name (including maiden name, if appropriate) and any other names used; current mailing address and zip code; date and place of birth; notarized signature or statement under penalty of perjury; a brief description of the circumstances that caused the creation of the record (including the city and/or country and the approximate dates) which gives the individual cause to believe that the Risk Analysis and Management Records include records pertaining to the individual. Detailed instructions on Department of State procedures for accessing and amending records can be found at the Department's FOIA website located at
Individuals who wish to contest a record should write to U.S. Department of State; Director, Office of Information Programs and Services; A/GIS/IPS; 2201 C Street NW, Room B-266; Washington, DC 20520.
Individuals who have reason to believe that this system of records may contain information pertaining to themselves may write to U.S. Department of State; Director, Office of Information Programs and Services; A/GIS/IPS; 2201 C Street NW, Room B-266; Washington, DC 20520. The individual must specify that he or she wishes the Risk Analysis and Management Records to be checked. At a minimum, the individual must include: Full name (including maiden name, if appropriate) and any other names used; current mailing address
To the extent applicable, because this system contains information related to the government's national security programs, records in this system may be exempt from any part of 5 U.S.C. 552a except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6),(7), (9), (10), and (11) if the records in the system are subject to the exemption found in 5 U.S.C. 552a(j). To the extent applicable, records in this system may be exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), (I), and (f) of 5 U.S.C. 552a if the records in the system are subject to the exemption found in 5 U.S.C. 552a(k). Any other exempt records from other systems of records that are recompiled into this system are also considered exempt to the extent they are claimed as such in the original systems.
Previously published at 76 FR 76215.
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 “Philip Guston Now” at the Museum of Fine Arts, Boston, in Boston, Massachusetts; the Museum of Fine Arts, Houston, in Houston, Texas; the National Gallery of Art, Washington, District of Columbia; 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 final disposition.
FMCSA announces its decision to exempt 12 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) to operate a commercial motor vehicle (CMV) in interstate commerce. They are unable to meet the vision requirement in one eye for various reasons. The exemptions enable these individuals to operate CMVs in interstate commerce without meeting the vision requirement in one eye.
The exemptions were applicable on March 8, 2022. The exemptions expire on March 8, 2024.
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
To view comments go to
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
On February 3, 2022, FMCSA published a notice announcing receipt of applications from 12 individuals requesting an exemption from vision requirement in 49 CFR 391.41(b)(10) and requested comments from the public (87 FR 6229). The public comment period ended on March 7, 2022, and two comments were received.
FMCSA has evaluated the eligibility of these applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to, or greater than, the level that would be achieved by complying with § 391.41(b)(10).
The physical qualification standard for drivers regarding vision found in § 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
FMCSA received two comments in this proceeding. The Minnesota Department of Public Safety submitted a comment in support of the decision to issue an exemption to Eugene F. Napieralski. Amy Marshall submitted a comment regarding two individuals who are not listed in this notice.
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 Agency's decision regarding these exemption applications is based on medical reports about the applicants' vision, as well as their driving records and experience driving with the vision deficiency. The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the February 3, 2022,
FMCSA recognizes that some drivers do not meet the vision requirement but have adapted their driving to accommodate their limitation and demonstrated their ability to drive safely. The 12 exemption applicants listed in this notice are in this category. They are unable to meet the vision requirement in one eye for various reasons, including amblyopia, complete vision loss, corneal opacity, corneal scarring, optic atrophy, and retinal detachment. In most cases, their eye conditions did not develop recently. Eight of the applicants were either born with their vision impairments or have had them since childhood. The four individuals that developed their vision conditions as adults have had them for a range of 6 to 42 years. Although each applicant has one eye that does not meet the vision requirement in § 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and, in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV.
Doctors' opinions are supported by the applicants' possession of a valid license to operate a CMV. By meeting State licensing requirements, the applicants demonstrated their ability to operate a CMV with their limited vision in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. We believe that the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions.
The applicants in this notice have driven CMVs with their limited vision in careers ranging for 4 to 41 years. In the past 3 years, one driver was involved in a crash, and two drivers were convicted of moving violations in CMVs. All the applicants achieved a record of safety while driving with their vision impairment that demonstrates the likelihood that they have adapted their driving skills to accommodate their condition. As the applicants' ample driving histories with their vision deficiencies are good predictors of future performance, FMCSA concludes their ability to drive safely can be projected into the future.
Consequently, FMCSA finds that in each case exempting these applicants from the vision requirement in § 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption are provided to the applicants in the exemption document and includes the following: (1) Each driver must be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in § 391.41(b)(10) and (b) by a certified medical examiner (ME) who attests that the individual 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 in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
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 12 exemption applications, FMCSA exempts the following drivers from the vision requirement, § 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 from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (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 prior to being 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).
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of denials.
FMCSA announces its decision to deny the applications from five individuals treated with an ICD who requested an exemption from the Federal Motor Carrier Safety Regulations (FMCSRs) prohibiting operation of a commercial motor vehicle (CMV) in interstate commerce by persons with a current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or any other cardiovascular disease of a variety known to be accompanied by syncope (transient loss of consciousness), dyspnea (shortness of breath), collapse, or congestive heart failure.
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
To view comments go to
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments from the public on the exemption request. DOT posts these comments, without edit, including any personal information the commenter provides, to
On November 12, 2021, FMCSA published a
FMCSA has evaluated the eligibility of the applicants and concluded that granting an exemption would not provide a level of safety that would be equivalent to, or greater than, the level of safety that would be obtained by complying with § 391.41(b)(4). A summary of each applicant's medical history related to their ICD exemption request was discussed in the November 12, 2021,
The Agency's decision regarding this exemption application is based on information from the Cardiovascular Medical Advisory Criteria, an April 2007 evidence report titled “Cardiovascular Disease and Commercial Motor Vehicle Driver Safety,”
FMCSA has published advisory criteria to assist medical examiners in determining whether drivers with certain medical conditions are qualified to operate a CMV in interstate commerce.
FMCSA received one comment in this proceeding. The commenter supported granting exemptions to the applicants stipulating a 6-month cardiology review and a 6-month medical certification period as safety assurances.
FMCSA acknowledges that while a more frequent cardiology review and physical qualification period may be feasible for some of the applicants, others may find a more frequent medical review period burdensome and costly. In addition, there continues to be a risk for arrhythmias, and inherent complications such as inappropriate discharges, and ICD malfunction which could pose a risk to the individual and the public while driving a CMV.
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 Agency's decision regarding these exemption applications is based on an individualized assessment of the applicants' medical information, available medical and scientific data concerning ICDs, and any relevant public comments received.
In the case of persons with ICDs, the underlying condition for which the ICD was implanted places the individual at high risk for syncope or other unpredictable events known to result in gradual or sudden incapacitation. ICDs may discharge, which could result in loss of ability to safely control a CMV. The December 2014 focused research report referenced previously upholds the findings of the April 2007 report and indicates that the available scientific data on persons with ICDs and CMV driving does not support that persons with ICDs who operate CMVs are able to meet an equal or greater level of safety.
The Agency has determined that the available medical and scientific literature and research provides
The applicants have, prior to this notice, received a letter of final disposition regarding their exemption request. The decision letter fully outlined the basis for the denial and constitute final action by the Agency. The names of these individuals published today summarizes the Agency's recent denials as required under 49 U.S.C. 31315(b)(4).
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of final disposition.
FMCSA announces its decision to exempt 32 individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The exemptions enable these individuals who have had one or more seizures and are taking anti-seizure medication to operate CMVs in interstate commerce.
The exemptions were applicable on March 15, 2022. The exemptions expire on March 15, 2024.
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
To view comments go to
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments from the public on the exemption request. DOT posts these comments, without edit, including any personal information the commenter provides, to
On February 3, 2022, FMCSA published a notice announcing receipt of applications from 32 individuals requesting an exemption from the epilepsy and seizure disorders prohibition in 49 CFR 391.41(b)(8) and requested comments from the public (87 FR 6231). The public comment period ended on March 7, 2022, and four comments were received.
FMCSA has evaluated the eligibility of these applicants and determined that granting exemptions to these individuals would achieve a level of safety equivalent to, or greater than, the level that would be achieved by complying with § 391.41(b)(8).
The physical qualification standard for drivers regarding epilepsy found in § 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria
FMCSA received four comments in this proceeding. Of the four comments received, three were in support of Callon Hegman's seizure exemption application and one was in support of Shaen Smith's seizure exemption application.
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 Agency's decision regarding these exemption applications is based on the 2007 recommendations of the Agency's Medical Expert Panel. The Agency conducted an individualized assessment of each applicant's medical information, including the root cause of the respective seizure(s) and medical information about the applicant's seizure history, the length of time that has elapsed since the individual's last seizure, the stability of each individual's treatment regimen and the duration of time on or off of anti-seizure medication. In addition, the Agency reviewed the treating clinician's medical opinion related to the ability of the driver to safely operate a CMV with a history of seizure and each applicant's driving record found in the commercial driver's license Information System for commercial driver's license (CDL) holders, and interstate and intrastate inspections recorded in the Motor Carrier Management Information System. For non-CDL holders, the Agency reviewed the driving records
These 32 applicants have been seizure-free over a range of 2 to 37 years while taking anti-seizure medication and maintained a stable medication treatment regimen for the last 2 years. In each case, the applicant's treating physician verified his or her seizure history and supports the ability to drive commercially.
The Agency acknowledges the potential consequences of a driver experiencing a seizure while operating a CMV. However, the Agency believes the drivers granted this exemption have demonstrated that they are unlikely to have a seizure and their medical condition does not pose a risk to public safety.
Consequently, FMCSA finds that in each case exempting these applicants from the epilepsy and seizure disorder prohibition in § 391.41(b)(8) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption are provided to the applicants in the exemption document and includes the following: (1) Each driver must remain seizure-free and maintain a stable treatment during the 2-year exemption period; (2) each driver must submit annual reports from their treating physicians attesting to the stability of treatment and that the driver has remained seizure-free; (3) each driver must undergo an annual medical examination by a certified ME, as defined by § 390.5; and (4) 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 file if he/she is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
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 32 exemption applications, FMCSA exempts the following drivers from the epilepsy and seizure disorder prohibition, § 391.41(b)(8), subject to the requirements cited above:
In accordance with 49 U.S.C. 31315(b), each exemption will be valid for 2 years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (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 prior to being 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).
Financial Crimes Enforcement Network (FinCEN), Treasury.
Notice and request for comments.
As part of its continuing effort to reduce paperwork and respondent burden, FinCEN invites comments on the proposed renewal, without change, of a currently approved information collection found in existing Bank Secrecy Act regulations. Specifically, FinCEN invites comments on a renewal, without change, of existing information collection requirements for the Report of International Transportation of Currency or Monetary Instruments (CMIR). Although no changes are proposed to the information collection itself, this request for comments covers a proposed updated burden estimate for the information collection. This request for comments is made pursuant to the Paperwork Reduction Act of 1995 (PRA).
Written comments are welcome, and must be received on or before May 23, 2022.
Comments may be submitted by any of the following methods:
•
•
Please submit comments by one method only. Comments will be reviewed consistent with the Paperwork Reduction Act of 1995 and applicable OMB regulations and guidance. Comments submitted in response to this notice will become a matter of public record. Therefore, you should submit only information that you wish to make publicly available.
The FinCEN Regulatory Support Section at 1-800-767-2825 or electronically at
The legislative framework generally referred to as the Bank Secrecy Act (BSA) consists of the Currency and Financial Transactions Reporting Act of 1970, as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107-56 (October 26, 2001), and other
The BSA authorizes the Secretary of the Treasury (the “Secretary”),
31 U.S.C. 5316 requires, with limited exceptions, that a person, or an agent or bailee of the person, file a report when the person, agent, or bailee knowingly: (i) Transports, is about to transport, or has transported monetary instruments
31 CFR 1010.340(a) requires each person
31 CFR 1010.340(b) requires each person in the United States who receives at any one time currency or other monetary instruments exceeding $10,000 in the aggregate, which have been transported, mailed, or shipped to such person from any place outside the United States, to file a CMIR if the CMIR has not already been filed pursuant to 31 CFR 1010.340(a). The CMIR must include the amount, the date of receipt, the form of monetary instruments, and the person from whom the funds were received.
31 CFR 1010.340(c) includes a list of persons that are not required to file a CMIR, even if they satisfy the conditions of 31 CFR 1010.340(a) or (b). 31 CFR 1010.340(d) clarifies that a transfer of funds through normal banking procedures, which does not involve the physical transportation of currency or monetary instruments, is not required to be reported on the CMIR.
According to the CMIR instructions, each person who receives currency or other monetary instruments in the United States must file a CMIR within 15 days after receipt of the currency or monetary instruments with the United States Customs and Border Protection (CBP) officer in charge at any port of entry or departure, or by mail.
A transportation, mailing, or shipping of currency or monetary instruments does not need to be reported if any other participants in that cross-border transportation, mailing, or shipping previously filed a complete and accurate CMIR. If, however, a complete and accurate CMIR has not been filed with respect to a given transaction, no person required to file the CMIR will be excused for failure to do so.
A person transporting their own currency or monetary instruments (a “traveler”) in excess of $10,000, or shipping, mailing, or receiving such value on their own behalf, must provide their own information when completing the CMIR. In completing a CMIR, a person acting for anyone else when transporting, shipping, mailing, or receiving currency or monetary instruments (a “currency transporter”) in excess of $10,000 must provide (a) the person's own information, and (b) information about (i) the person on whose behalf the transaction was conducted, (ii) the person from whom the currency or monetary instruments were received, and/or (iii) the person to whom the currency or monetary instruments were shipped.
• Renewal without change of a currently approved information collection.
(a) The total number of CMIRs filed annually;
(b) The time and cost for travelers to report transporting, mailing, shipping, or receiving their own currency or monetary instruments;
(c) The time and cost for currency transporters to report transporting, mailing, shipping, or receiving currency or monetary instruments on behalf of others;
(d) The cost to CBP to receive, review, and process CMIRs; and
(e) The cost to FinCEN to upload and store CMIRs.
Using CBP data, FinCEN identified the number of CMIRs filed over the past five years, broken down by the dollar amount reported on individual CMIRs.
Because the COVID-19 pandemic severely impacted cross-border travel during 2020 and, to a lesser degree, 2021, FinCEN restricted its average annual CMIR reporting estimate to the average number of CMIRs filed between 2017-2019.
FinCEN estimates that approximately 184,709 CMIRs are filed annually.
(a) 14,296 CMIRs (or 7.74% of the total estimate) have reporting amounts of $250,000 and above. FinCEN assesses that CMIRs reporting $250,000 or more are likely CMIRs filed by currency transporters.
b) 170,413 CMIRs (or 92.26% of the total estimate) have reporting amounts of less than $250,000. FinCEN assesses that CMIRs reporting less than $250,000 are likely CMIRs filed by travelers on behalf of themselves.
The information required to be reported on the CMIR is basic identifying and transaction information which would be readily accessible to a traveler or currency transporter. For instance, a traveler only has to report identifying information on themselves. A currency transporter has to report identifying information on itself, as well as on the person or business on whose behalf the currency is being transported. Both travelers and currency transporters are required to report on the type and amount of the currency being transported. For these reasons, FinCEN estimates that the completion of a CMIR filed by travelers reporting transactions involving their own currency or monetary instruments (including both the completion of the report and the storing of a copy) will require 15 minutes, while the completion of a CMIR filed by currency transporters will require 30 minutes.
To estimate the cost of compliance with CMIR reporting requirements for travelers, FinCEN used an average fully loaded wage rate of $38.44 per hour (composed of $27.07 per hour, the mean hourly wage for all employees from the May 2020 National Occupational Employment and Wage Estimates report,
To estimate the cost of compliance with CMIR reporting requirements for currency transporters, FinCEN calculated an average weighted fully loaded wage rate representing the participation of two different employee levels in the preparation of the report: An operational level that fills in the report, and a direct supervision level that controls it.
Based on an allocation of twenty minutes (approximately 67% of the total estimated time to complete and file a CMIR) for the operational level to complete and store a copy of the report, and ten minutes (approximately 33% of the total estimated time to complete and file a CMIR) for the direct supervision level to compare the completed report against transportation documents, the weighted fully loaded wage would be:
FinCEN estimates the annual compliance cost of CMIRs filed by currency transporters reporting transactions conducted on behalf of others, at $221,802 (14,296 reports multiplied by the weighted fully loaded wage rate of $31.03, multiplied by the ratio of 30 minutes/60 minutes, rounded up to the nearest hour and dollar).
(a) CBP's processing cost: $1,416,364.39.
(b) FinCEN's upload and storing cost: $18,470.90 (the estimated annual cost to FinCEN is $0.10 per report, times the estimated number of annual reports (184,709 reports)).
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. Records required to be retained under the BSA must be retained for five years.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (i) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (ii) the accuracy of the agency's estimate of the burden of the collection of information; (iii) ways to enhance the quality, utility, and clarity of the information to be collected; (iv) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (v) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names
See
OFAC: Andrea Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On March 18, 2022, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authorities listed below.
1. MOLINA MONTEJO, Werner Dario, Aldea Agua Zarca, Huehuetenango, Guatemala; Canton La Candelaria Z.0, La Democracia, Huehuetenango, Guatemala; DOB 12 Nov 1984; POB Santa Ana Huista, Huehuetenango, Guatemala; nationality Guatemala; Gender Male; Cedula No. Cedula: M-137560 (Guatemala); Passport 111331000075604 (Guatemala) issued 08 Feb 2007 expires 26 Oct 2012; NIT # 27751171 (Guatemala); Driver's License No. 20332679 (Guatemala); C.U.I. 1785205271331 (Guatemala) (individual) [ILLICIT-DRUGS-E.O.]. Sanctioned pursuant to section 1(b)(iii) of Executive Order 14059 of December 15, 2021, “Imposing Sanctions on Foreign Persons Involved in the Global Illicit Drug Trade,” (the “Order”), for being owned, controlled, or directed by, or having acted or purported to act for or on behalf of, directly or indirectly, LOS HUISTAS DRUG TRAFFICKING ORGANIZATION, a sanctioned person.
2. MOLINA LOPEZ, Eugenio Dario, La Democracia, Huehuetenango, Guatemala; Agua Zarca, Huehuetenango, Guatemala; Santa Ana Huista, Huehuetenango, Guatemala; San Antonio Huista, Huehuetenango, Guatemala; DOB 02 Jun 1964; POB Guatemala; nationality Guatemala; Gender Male; NIT # 6574734 (Guatemala); C.U.I. 1798585561331 (Guatemala) (individual) [ILLICIT-DRUGS-E.O.]. Sanctioned pursuant to section 1(a)(i) of the Order for having engaged in, or attempted to engage in, activities or transactions that have materially contributed to, or pose a significant risk of materially contributing to, the international proliferation of illicit drugs or their means of production.
3. MONTEJO SAENZ, Axel Bladimir (a.k.a. “MOSH”), Guatemala; DOB 26 Oct 1986; POB Santa Ana Huista, Huehuetenango, Guatemala; nationality Guatemala; Gender Male; Cedula No. M-138057 (Guatemala); NIT # 35348208 (Guatemala); C.U.I. 1613087591331 (Guatemala) (individual) [ILLICIT-DRUGS-E.O.]. Sanctioned pursuant to section 1(a)(i) of the Order for having engaged in, or attempted to engage in, activities or transactions that have materially contributed to, or pose a significant risk of materially contributing to, the international proliferation of illicit drugs or their means of production.
4. MORENO LOPEZ, Ervin Rene, Canton La Candelaria Z.0, La Democracia, Huehuetenango, Guatemala; DOB 26 Jan 1976; POB Guatemala; nationality Guatemala; Gender Male; NIT # 1654613K (Guatemala); C.U.I. 1596467901301 (Guatemala) (individual) [ILLICIT-DRUGS-E.O.]. Sanctioned pursuant to section 1(b)(iii) of the Order for being owned, controlled, or directed by, or having acted or purported to act for or on behalf of, directly or indirectly, LOS HUISTAS DRUG TRAFFICKING ORGANIZATION, a sanctioned person.
5. SALAZAR FLORES, Freddy Arnoldo (a.k.a. SALAZAR FLORES, Fredy Arnoldo; a.k.a. “BOICA”; a.k.a. “BOYCA”), Guatemala; DOB 14 Feb 1984; POB Guatemala; nationality Guatemala; Gender Male; NIT # 34746072 (Guatemala); C.U.I. 2639667390611 (Guatemala) (individual) [ILLICIT-DRUGS-E.O.]. Sanctioned pursuant to section 1(a)(i) of the Order for having engaged in, or attempted to engage in, activities or transactions that have materially contributed to, or pose a significant risk of materially contributing to, the international proliferation of illicit drugs or their means of production.
6. SAMAYOA MONTEJO, Roger Antulio (a.k.a. “TULI”), Guatemala; DOB 07 Oct 1989; POB Guatemala; nationality Guatemala; Gender Male; NIT # 72405902 (Guatemala); C.U.I. 2344272801331 (Guatemala) (individual) [ILLICIT-DRUGS-E.O.]. SAMAYOA MONTEJO, Roger Antulio (a.k.a. “TULI”), Guatemala; DOB 07 Oct 1989; POB Guatemala; nationality Guatemala; Gender Male; NIT # 72405902 (Guatemala); C.U.I. 2344272801331 (Guatemala) (individual) [ILLICIT-DRUGS-E.O.]. Sanctioned pursuant to section 1(b)(iii) of the Order for having acted or purported to act for or on behalf of, directly or indirectly, Aler Baldomero, SAMAYOA RECINOS and the LOS HUISTAS DRUG TRAFFICKING ORGANIZATION, all sanctioned persons.
7. SAMAYOA RECINOS, Aler Baldomero (a.k.a. “EL CHICHARRA”), Aldea Cuatro Caminos, Santa Ana Huista, Huehuetenango, Guatemala; Aldea Yuxen, Santa Ana Huista, Huehuetenango, Guatemala; DOB 27 Feb 1967; POB Santa Ana Huista, Huehuetenango, Guatemala; nationality Guatemala; Gender Male; Cedula No. M-1300003118 (Guatemala); Passport 111331000031186 (Guatemala) issued 12 Feb 2001 expires 03 Jul 2012; NIT # 5566568 (Guatemala); Driver's License No. 30791794 (Guatemala); C.U.I. 1892644891331 (Guatemala) (individual) [ILLICIT-DRUGS-E.O.]. Sanctioned pursuant to section 1(a)(i) of the Order for having engaged in, or attempted to engage in, activities or transactions that have materially contributed to, or pose a significant risk of materially contributing to, the international proliferation of illicit drugs or their means of production.
1. COMPRADORES Y EXPORTADORES DE CAFE CAPTZIN, SOCIEDAD ANONIMA (a.k.a. “COMEXCAFE”), Canton La Candelaria Z.0, La Democracia, Huehuetenango, Guatemala; NIT # 68897952 (Guatemala) [ILLICIT-DRUGS-E.O.]. Sanctioned pursuant to section 1(b)(iii) of the Order for having acted or purported to act for or on behalf of, directly or indirectly, Eugenio Dario MOLINA LOPEZ, a sanctioned person.
2. LOS HUISTAS DRUG TRAFFICKING ORGANIZATION (a.k.a. “LOS HUISTAS DTO”), Santa Ana Huista, Huehuetenango, Guatemala; San Antonio Huista, Huehuetenango, Guatemala; La Democracia, Huehuetenango, Guatemala; Target Type Criminal Organization [ILLICIT-DRUGS-E.O.]. Sanctioned pursuant to section 1(a)(i) of the Order for having engaged in, or attempted to engage in, activities or transactions that have materially contributed to, or pose a significant risk of materially contributing to, the international proliferation of illicit drugs or their means of production.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property
See
OFAC: Andrea Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; Assistant Director for Licensing, tel.: 202-622-2480; or Assistant Director for Regulatory Affairs, tel. 202-622-4855.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On March 17, 2022, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authorities listed below.
1. GOETZ, Alain Francois Viviane (a.k.a. GOETZ, Alain; a.k.a. GOZ, Alen), The Palm Jumeirah 0-35, 65919, Dubai, United Arab Emirates; Villa 39, Frond N, The Palm Jumeirah, Dubai, United Arab Emirates; DOB 24 Apr 1965; alt. DOB 20 Apr 1965; POB Antwerp, Belgium; nationality Belgium; citizen Turkey; Gender Male; Passport EP985086 (Belgium) issued 08 May 2018 expires 07 May 2025; alt. Passport 50641895930 (Turkey) expires 10 Jul 2030; Identification Number 784196536027277 (United Arab Emirates) (individual) [DRCONGO] (Linked To: AFRICAN GOLD REFINERY LIMITED).
Designated pursuant to section 1(a)(ii)(C)(7) of Executive Order 13413 of October 27, 2006, “Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo,” 71 FR 64105, 3 CFR, 2006 Comp., p. 247, as amended by Executive Order 13671 of July 8, 2014 “Taking Additional Steps to Address the National Emergency With Respect to the Conflict in the Democratic Republic of the Congo,” 79 FR 39949, 3 CFR, 2014 Comp., p. 280 (“the Order”), for being responsible for or complicit in, or having engaged in, directly or indirectly, support to persons, including armed groups, involved in activities that threaten the peace, security, or stability of the Democratic Republic of the Congo (DRC) or that undermine democratic processes or institutions in the DRC, through the illicit trade in natural resources of the DRC.
Also designated pursuant to section 1(a)(ii)(E) of the Order, for being a leader of AFRICAN GOLD REFINERY LIMITED, an entity whose property and interests in property are blocked pursuant to the Order.
Also designated pursuant to section 1(a)(ii)(G) of the Order, for having acted or purported to act for or on behalf of, directly or indirectly, AFRICAN GOLD REFINERY LIMITED, an entity whose property and interests in property are blocked pursuant to the Order.
1. AFRICAN GOLD REFINERY LIMITED (a.k.a. AFRICAN GOLD REFINERY UGANDA), Plot No. M103 and 106, Sebugwawo Road, Entebbe, Uganda; P.O. Box 37574, Kampala, Uganda; Organization Type: Mining of other non-ferrous metal ores; Target Type Private Company; Registration Number 180334 (Uganda) [DRCONGO] (Linked To: GOETZ, Alain Francois Viviane).
Designated pursuant to section 1(a)(ii)(C)(7) of the Order, for being responsible for or complicit in, or having engaged in, directly or indirectly, support to persons, including armed groups, involved in activities that threaten the peace, security, or stability of the DRC or that undermine democratic processes or institutions in the DRC, through the illicit trade in natural resources of the DRC.
2. AGOR DMCC (a.k.a. AGOR LTD; a.k.a. AGOR PRECIOUS METALS), Office Number 703A, 7th Floor, Mazaya Business Avenue, AAI, JLT, Dubai, United Arab Emirates; Organization Type: Manufacture of jewellery and related articles; Commercial Registry Number 30641 (United Arab Emirates); alt. Commercial Registry Number 805920 (United Arab Emirates) [DRCONGO] (Linked To: GOETZ, Alain Francois Viviane).
Designated pursuant to section 1(a)(ii)(G) of the Order, for being owned or controlled by, directly or indirectly, Alain Francois Viviane GOETZ, a person whose property and interests in property are blocked pursuant to the Order.
3. AGR INTERNATIONAL LIMITED, Global Gateway, 8 rue de la Perle, Providence, Mahe, Seychelles; Organization Type: Activities of holding companies; Target Type Private Company; Company Number 200304 (Seychelles) [DRCONGO] (Linked To: GOETZ, Alain Francois Viviane).
Designated pursuant to section 1(a)(ii)(G) of the Order, for being owned or controlled by, directly or indirectly, Alain Francois Viviane GOETZ, a person whose property and interests in property are blocked pursuant to the Order.
4. ALAXY (a.k.a. ALAXY BVBA; f.k.a. BERKENRODE BVBA), Jacob Jacobsstraat 56, Antwerp 2018, Belgium; Organization Type: Other business support service activities n.e.c.; Target Type Private Company; Enterprise Number 0478862274 (Belgium) [DRCONGO] (Linked To: GOETZ, Alain Francois Viviane).
Designated pursuant to section 1(a)(ii)(G) of the Order, for being owned or controlled by, directly or indirectly, Alain Francois Viviane GOETZ, a person whose property and interests in property are blocked pursuant to the Order.
5. CG—VASTGOED INVEST, Jacob Jacobsstraat 56, Antwerp 204818, Belgium; Organization Type: Activities of holding companies; Target Type Public Company; Enterprise Number 0806408906 (Belgium) [DRCONGO] (Linked To: GOETZ, Alain Francois Viviane).
Designated pursuant to section 1(a)(ii)(G) of the Order, for being owned or controlled by, directly or indirectly, Alain Francois Viviane GOETZ, a person whose property and interests in property are blocked pursuant to the Order.
6. GOETZ GOLD LLC (a.k.a. PGR GOLD LLC; a.k.a. PGR GOLD TRADING LLC), Dubai, United Arab Emirates; Organization Type: Mining of other non-ferrous metal ores; Commercial Registry Number 689308 (United Arab Emirates) [DRCONGO] (Linked To: GOETZ, Alain Francois Viviane).
Designated pursuant to section 1(a)(ii)(G) of the Order, for being owned or controlled by, directly or indirectly, Alain Francois Viviane GOETZ, a person whose property and interests in property are blocked pursuant to the Order.
7. OROFINO NV (a.k.a. “OROFINO”), Jacob Jacobsstraat 56, Antwerp 2018, Belgium; Organization Type: Activities of holding companies; Target Type Public Company; Enterprise Number 0892529761 (Belgium) [DRCONGO] (Linked To: GOETZ, Alain Francois Viviane).
Designated pursuant to section 1(a)(ii)(G) of the Order, for being owned or controlled by, directly or indirectly, Alain Francois Viviane GOETZ, a person whose property and interests in property are blocked pursuant to the Order.
8. PREMIER GOLD REFINERY LLC, Al Qusais Industrial 5, Dubai, United Arab Emirates; P.O. Box 64701, Dubai, United Arab Emirates; Plot No. 248-384, Dubai, United Arab Emirates; Organization Type: Manufacture of basic precious and other non-ferrous metals; Business Registration Number 716708 (United Arab Emirates) [DRCONGO] (Linked To: GOETZ, Alain Francois Viviane).
Designated pursuant to section 1(a)(ii)(G) of the Order, for being owned or controlled by, directly or indirectly, Alain Francois Viviane GOETZ, a person whose property and interests in property are blocked pursuant to the Order.
9. WWG DIAMONDS, Jacob Jacobsstraat 56, Antwerp 2018, Belgium; Target Type Private Company; Enterprise Number 0821135682 (Belgium) [DRCONGO] (Linked To: GOETZ, Alain Francois Viviane).
Designated pursuant to section 1(a)(ii)(G) of the Order, for being owned or controlled by, directly or indirectly, Alain Francois Viviane GOETZ, a person whose property and interests in property are blocked pursuant to the Order.
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel's Special Projects Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service. Due to unavoidable delays in this year's approval process, we will not be able to meet the 15-calendar notice threshold, but this meeting will still be open. This meeting will still be held via teleconference.
The meeting will be held Friday, April 1, 2022.
Antoinette Ross at 1-888-912-1227 or 202-317-4110.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel's Special Projects Committee will be held Friday, April 1, 2022, at 11:00 a.m. Eastern Time. The public is invited to make oral comments or submit written statements for consideration. Due to limited time and structure of meeting, notification of intent to participate must be made with Antoinette Ross. For more information please contact Antoinette Ross at 1-888-912-1227 or 202-317-4110, or write TAP Office, 1111 Constitution Ave. NW, Room 1509, Washington, DC 20224 or contact us at the website:
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 8876,
Written comments should be received on or before May 23, 2022 to be assured of consideration.
Direct all written comments to Andrés Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of the form and instructions should be directed to Ronald J. Durbala, at (202) 317-5746, at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
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
Written comments should be received on or before May 23, 2022 to be assured of consideration.
Direct all written comments to Andrés Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of the form and instructions should be directed to Ronald J. Durbala, at (202) 317-5746, at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
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 of meeting.
An open meeting of the Taxpayer Advocacy Panel's Taxpayer Communications Project Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service. Due to unavoidable delays in this year's approval process, we will not be able to meet the 15-calendar notice threshold, but this meeting will still be open. This meeting will still be held via teleconference.
The meeting will be held Wednesday, March 30, 2022.
Conchata Holloway at 1-888-912-1227 or 336-690-6217.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that a meeting of the Taxpayer Advocacy Panel Taxpayer Communications Project Committee will be held Wednesday, March 30, 2022, at 2:00 p.m. Eastern Time. The public is invited to make oral comments or submit written statements for consideration. Due to limited time and structure of meeting, notification of intent to participate must be made with Conchata Holloway. For more information please contact Conchata Holloway at 1-888-912-1227 or 214-413-6550, or write TAP Office, 1114 Commerce Street, Mail Code 1005DAL, Dallas, Texas, 75242 or contact us at the website:
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel's Notices and Correspondence Project Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service. Due to unavoidable delays in this year's approval process, we will not be able to meet the 15-calendar notice threshold, but this meeting will still be open. This meeting will still be held via teleconference.
The meeting will be held Wednesday, March 30, 2022.
Robert Rosalia at 1-888-912-1227 or (718) 834-2203.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel's Notices and Correspondence Project Committee will be held Wednesday, March 30, 2022, at 11:00 a.m. Eastern Time. The public is invited to make oral comments or submit written statements for
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel's Tax Forms and Publications Project Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service. Due to unavoidable delays in this year's approval process, we will not be able to meet the 15-calendar notice threshold, but this meeting will still be open. This meeting will still be held via teleconference.
The meeting will be held Thursday, March 31, 2022.
Fred Smith at 1-888-912-1227 or (202) 317-3087.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that a meeting of the Taxpayer Advocacy Panel's Tax Forms and Publications Project Committee will be held Thursday, March 31, 2022, at 2:00 p.m. Eastern Time. The public is invited to make oral comments or submit written statements for consideration. Due to limited time and structure of meeting, notification of intent to participate must be made with Fred Smith. For more information, please contact Fred Smith at 1-888-912-1227 or (202) 317-3087, or write TAP Office, 1111 Constitution Ave. NW, Room 1509, Washington, DC 20224 or contact us at the website:
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel's Toll-Free Phone Lines Project Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service. Due to unavoidable delays in this year's approval process, we will not be able to meet the 15-calendar notice threshold, but this meeting will still be open. This meeting will still be held via teleconference.
The meeting will be held Thursday, March 31, 2022.
Rosalind Matherne at 1-888-912-1227 or 202-317-4115.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel Toll-Free Phone Lines Project Committee will be held Thursday, March 31, 2022 at 11:00 a.m. Eastern Time. The public is invited to make oral comments or submit written statements for consideration. Due to limited time and structure of meeting, notification of intent to participate must be made with Rosalind Matherne. For more information please contact Rosalind Matherne at 1-888-912-1227 or 202-317-4115, or write TAP Office, 1111 Constitution Ave. NW, Room 1509, Washington, DC 20224 or contact us at the website:
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel's Taxpayer Assistance Center Improvements Project Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service. Due to unavoidable delays in this year's approval process, we will not be able to meet the 15-calendar notice threshold, but this meeting will still be open. This meeting will still be held via teleconference.
The meeting will be held Friday, April 1, 2022.
Matthew O'Sullivan at 1-888-912-1227 or (510) 907-5274.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel's Taxpayer Assistance Center Improvements Project Committee will be held Friday, April 1, 2022, at 2:00 p.m. Eastern Time. The public is invited to make oral comments or submit written statements for consideration. Due to limited time and structure of meeting, notification of intent to participate must be made with Matthew O'Sullivan. For more information please contact Matthew O'Sullivan at 1-888-912-1227 or (510) 907-5274, or write TAP Office, 1301 Clay Street, Oakland, CA 94612-5217 or contact us at the website:
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other federal agencies to comment on the proposed information collections listed below, in accordance with the Paperwork Reduction Act of 1995.
Written comments must be received on or before May 23, 2022.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, by the following method:
•
Copies of the submissions may be obtained from Christopher Sun by emailing
Department of Veterans Affairs.
Notice of solicitation for nominations.
The Department of Veterans Affairs (VA) is seeking nominations of qualified candidates to be considered for appointment to the Advisory Committee on Homeless Veterans (ACHV) (hereinafter in this section referred to as “the Committee”).
Nominations for membership on the Committee must be received
All nominations should be emailed to
Anthony Love, Designated Federal Officer, ACHV; VHA Homeless Programs Office at
The Committee was established to provide advice to the Secretary of the Department of Veterans Affairs (VA) on benefits and services provided to homeless Veterans by VA. In providing advice to the Secretary and making recommendations on improved services for homeless Veterans, the Committee carries out the duties set forth in 38 U.S.C. 2066 to operate under the provisions of the Federal Advisory Committee Act, as amended 5 U.S.C. App. 2. Public Law 115-251 Section 147 extended the Committee's statutory authority to September 30, 2022.
The expertise required of Committee membership includes, but is not limited to:
To the extent possible, the Secretary seeks members who have diverse professional and personal qualifications including but not limited to subject matter experts in the areas described above. We ask that nominations include any relevant experience information so that VA can ensure diverse Committee membership.
Nominations must be typed (12-point font) and include:
(1) A letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (
(2) The nominee's contact information, including name, mailing address, telephone numbers, and email address;
(3) The nominee's resume or curriculum vitae that is no more than three pages in length.
The resume should show professional work experience, and Veterans service involvement, and
(4) A one-page cover letter. The cover letter must summarize:
a. The nominee's interest in serving on the committee and contributions she/he can make to the work of the committee;
b. any relevant Veterans service activities she/he is currently engaged in;
c. the military branch affiliations and timeframe of military service (if applicable);
d. information about the nominee's personal and professional qualifications and background that would give her/him a diverse perspective on Veterans' matters; and
e. a statement confirming that she/he is not a Federally registered lobbyist.
The Department makes every effort to ensure that the membership of VA Federal Advisory Committees are diverse in terms of points of view represented and the committee's capabilities. Appointments to this Committee shall be made without discrimination because of a person's race, color, religion, sex, sexual orientation, gender identity, national origin, age, disability, or genetic information. Nominations must state that the nominee is willing to serve as a member of the Committee and appears to have no conflict of interest that would preclude membership. The Committee is authorized by statue, 38 U.S.C. 2066, to operate under the provisions of the Federal Advisory Committee Act, as amended 5 U.S.C. Appendix 2. Public Law 115-251 Section 147 extended the Committee's statutory authority to September 30, 2022.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act that the Veterans' Rural Health Advisory Committee will hold a teleconference meeting Tuesday, April 5, 2022, through Thursday April 7, 2022. The meeting will convene at 11:00 a.m. EST and adjourn at 2:30 p.m. EST each day. The meeting sessions are open to the public. The teleconference zoom link
The purpose of the Committee is to advise the Secretary of VA on rural health care issues affecting Veterans. The Committee examines programs and policies that impact the delivery of VA rural health care to Veterans and discusses ways to improve and enhance VA access to rural health care services for Veterans.
The agenda will include updates from Department leadership; the Executive Director, VA Office of Rural Health; and the Committee Chair; as well as presentations by subject matter experts on general rural health care access.
Public comments will be received at 3:00 p.m. on April 7, 2022. Interested parties should contact Ms. Judy Bowie, by email at
Federal Communications Commission.
Final rule.
The Wireline Competition Bureau and the Office of Economics and Analytics (WCB/OEA) adopt an Order defining the contours and specific requirements of the forthcoming Third Mandatory Data Collection for calling services for incarcerated people.
The effective date of the Order is delayed indefinitely. The Federal Communications Commission will publish a document in the
You may submit comments, identified by WC Docket No. 12-375, by any of the following methods:
•
•
• Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554.
• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020).
Erik Raven-Hansen, Pricing Policy Division of the Wireline Competition Bureau, at (202) 418-1532 or via email at
This is a summary of the FCC's Order, DA 22-52, released January 18, 2022. The full text of this Order is available at
1. By this Order, the WCB/OEA adopt instructions, a reporting template, and a certification form to implement a Third Mandatory Data Collection related to calling services for incarcerated people. The reporting template consists of a Word document and Excel spreadsheets. For simplicity, the Commission refers to these respective portions of the reporting template as the Word template and the Excel template. The Commission's actions today largely adopt the proposals contained in the Third MDC Proposal document, with certain refinements and reevaluations responsive to record comments.
2. In the 2021 ICS Order, the Commission directed WCB/OEA to develop a new data collection “related to providers' operations, costs, demand, and revenues.” The Commission has conducted two prior mandatory data collections (MDCs) relating to inmate calling services (calling services or ICS) in the past—the 2014 First Mandatory Data Collection and the 2019 Second Mandatory Data Collection. The Commission explained that it would use the collected information to set permanent interstate and international inmate calling services provider-related rate caps that more closely reflect providers' costs of serving correctional facilities. The Commission also emphasized that the information would enable it to evaluate and, if warranted, revise the current caps for ancillary service charges.
3. The Commission delegated authority to WCB/OEA to implement this Third Mandatory Data Collection and directed WCB/OEA to develop a template and instructions for the collection. The Commission also directed WCB/OEA to consider suggestions in the record regarding, among other matters, data granularity, cost allocation, and specificity in definitions and instructions in designing the data collection, and “to require each provider to fully explain and justify each step of its costing process” including, where appropriate, “to specify the methodology the provider shall use in any or all of those steps.”
4. Pursuant to this delegation, WCB/OEA developed proposals for the Third Mandatory Data Collection and issued a Public Notice seeking comments on all aspects of the proposed collection. Concurrently, pursuant to the Paperwork Reduction Act of 1995 (PRA), the Commission published a document in the
5. The Commission received comments from numerous ICS providers, public interest advocates, and other interested parties in response to the Public Notice, and one comment on the PRA document. The Commission received comments or reply comments in response to this
6. Pursuant to delegated authority, the Commission adopts the instructions, template, and certification form to implement the Third Mandatory Data Collection. Commenters generally
7. Commenters did, however, offer suggestions to “improve the quality, accuracy, and utility of the data collected.” In response to these suggestions, the Commission has reevaluated some of the proposals and refined certain aspects of the instructions and templates, as set forth in greater detail below. These refinements include expanding the reporting period for cost data from one year to three years, revising certain proposed definitions, revamping the reporting of costs related to site commissions and security services, and reorganizing the reporting of operating expenses. The Commission concludes that these and the other modifications the Commission makes appropriately balance the need for “detailed and specific instructions and templates” and the desire to avoid unduly burdening providers. This conclusion is consistent with the Commission's finding in the
8. In finalizing the requirements for the data collection, the Commission does not resolve issues that are pending in the ICS rulemaking, such as the extent to which security costs are or are not related to ICS, or whether the Commission should change its rules, as some parties have suggested. As the Commission explained in the 2021 ICS Order, the purpose of this data collection is to provide the Commission with sufficient information to resolve various issues it is considering as part of that rulemaking, including the adoption of permanent interstate and international rate caps. Therefore, the Commission agrees with Worth Rises and others that this Order “is not the proper administrative vehicle” to revise the scope of the data collection or change Commission rules. In this regard, the Commission disagrees with GTL's suggestion that the Commission already has or will get certain information regarding, for example, “site commission payments, correctional facilities served, and annual ICS and ancillary service charge revenues” from the ICS Annual Reports. As the Commission explained in the
9. In the sections that follow, the Commission first addresses proposals to change specific data requests and then turns to proposals for more general revisions to the instructions.
10. The Commission adopts a requirement for ICS providers to report customer prepayments separately and modify the definition and thus the calculation of “Net Capital Stock” to reflect the subtraction of customer deposits. PPI proposes this additional reporting requirement because “customer prepayments are a material balance-sheet item for ICS carriers.” The Commission finds that customer prepayments are a source of non-investor supplied capital that should be subtracted from the providers' net capital stock because providers are able to use these monies to finance their operations. This subtraction treats customer deposits as zero interest, non-investor supplied capital, since the return on net capital stock reflected in the providers' annual total expenses will be reduced in proportion to the reduction in net capital stock. The Commission also requires providers to report the interest, if any, paid on customer prepayments separately from other interest expenses; and the Commission allows providers to add the interest paid on the customer deposits directly to their capital expense and annual total expenses. The Commission modifies the definition of “Capital Expenses” to make this clear.
11. In the Third MDC Proposal document, the Commission sought feedback about the types of data it should collect to help it understand the factors that affect the costs of providing interstate and international calling services at the facility level. The Commission proposed to collect data on billed minutes, unbilled minutes, average daily population (ADP), the number of telephones and kiosks installed, the opening and closing of accounts, admissions, releases, and weekly turnover rate. Based on record support, the Commission finds it appropriate to collect information on each of these metrics, including figures for new account generation and account termination. Securus argues that it would be sufficient to collect only ADP and data on the opening and closing of accounts while GTL asserts that the number of kiosks or telephones and account generation and termination are inaccurate indicators of demand. GTL asks us to rely solely on billed and unbilled minutes to determine demand. The Commission declines to implement these proposals. As an initial matter, the ADP reported for a facility may not always accurately indicate the demand for ICS at the facility or otherwise fully capture the factors affecting providers' costs. Thus, other metrics are critical in assessing cost causality. Obtaining data on activities like account set-up and termination will help the Commission understand if and how such activities impact providers' costs. In view of the above, the Commission finds GTL's suggestion that it can rely solely on billed and unbilled minutes too narrow. Instead, the Commission finds that collecting additional information on facility population metrics and account generation and termination will help the Commission better understand the providers' cost structures, including at relatively small facilities.
12. The Commission further adopts the proposal to require providers to submit weekly turnover rate data, where it is available. These data will supplement, and help the Commission correct potential flaws in, other population metrics (
13. The Commission takes a series of steps to reform the proposals concerning site commission data in response to the record in an effort to obtain more detailed and disaggregated information. First, consistent with the Commission's actions in the 2021 ICS Order, the Commission adopts the proposal to require ICS providers to categorize their site commission payments as either legally mandated or contractually prescribed for each of calendar years 2019 through 2021. GTL claims that requiring this categorization for three calendar years would impose a significant burden on providers because they had no obligation to separate site commission payments before the rules adopted in the 2021 ICS Order became effective on October 26, 2021. The Commission finds that GTL's characterization of the burden is overstated. Once a provider establishes whether site commission payments were legally mandated or contractually prescribed as of October 26, 2021, the additional burden of determining their categorization during earlier portions of the reporting period should be relatively minor, particularly where the provider operated under the same facility contract for the prior two years.
14. Second, after considering record comments, generally, regarding the proposed site commission data and various ways of supplementing reportable site commission data, the Commission modifies, on its own motion, the instructions and reporting requirements for site commissions to require providers to disaggregate their reported site commission payment information between monetary and in-kind payments and, further, between fixed and variable payments. The Commission likewise requires providers to disclose each entity to which they pay site commissions at each facility in any fashion, and the amount of the same. The Commission finds that this additional disaggregated information will improve the Commission's understanding of the market and the role that site commissions play in the provision of inmate calling services.
15. Third, the Commission adopts Securus's proposal that it require providers to identify and report up-front site commission payments at the beginning of a contract as a subset of fixed site commissions. The Commission agrees that this information will “provide a more accurate picture of overall site commissions,” and the Commission finds that the associated burden on providers will be minimal.
16. The Commission also adopts a new requirement instructing providers to explain how they allocate site commission payments between ICS and non-ICS operations. The Commission agrees with PPI that this will resolve uncertainty in situations where carriers make site commission payments for both ICS and non-ICS services. Gathering this information is also consistent with the directive that the Commission ensure providers allocate common expenses between their ICS operations and other operations. Although Securus urges us to reject this proposal, claiming that it will “further inject[ ] the Commission into unregulated services over which it has no jurisdiction,” this information will help the Commission determine what portion, if any, of site commission payments are properly attributable to ICS.
17. The Commission rewords the instructions on the allocation of site commissions at the facility level to correct for a loophole that could otherwise result in some of a provider's total site commission payments not being allocated to any facility. Specifically, the Commission instructs providers to fully allocate any reported site commissions among the facilities associated with each site commission payment during the reporting period. One commenter suggests that the Commission should require providers to identify the contract that governs ICS at each facility and require disclosure of the amounts and types of site commissions paid under that contract so that the Commission may understand instances where site commission payments were received by non-facility entities such as a governmental agency. The Commission adopts the requirement for providers to report each entity to which they pay site commissions at each facility in any fashion, and the amount of the same as a less burdensome alternative that will help clarify site commission allocations at the facility level.
18. The Commission declines to adopt additional reporting requirements regarding how site commission payments are spent or how the expenditures are related to ICS. To be useful, such information would need to be broken down into categories similar to those that the Commission requires for provider costs. In addition, providers would most likely have to obtain this detailed categorized information from facility administrators, who, in turn, would have to expend significant efforts in compiling the requested information. In many cases, these administrators may be reluctant to provide accurate information about their use, especially where it bears no relationship to inmate calling. Given these circumstances, the Commission declines to require providers to collect and report this information.
19. In the Third MDC Proposal document, the Commission proposed to require providers to report their security costs in connection with their ICS and non-ICS-related operations as part of their reporting on site commission payments and sought comment on a number of associated issues. After considering the comments, the Commission expands the data collection to include additional inquiries regarding providers' security and surveillance services outside the site commission section, including inquiries requiring narrative explanations describing such services. ICS providers should be mindful that any reporting in the separate subcategories outside the Site Commissions section must be exclusive of the data reported in connection with site commissions to prevent double-counting of security and surveillance costs. This approach is consistent with Worth Rises' and the Public Interest Parties' arguments that the collection should capture all security costs, not just those incurred in the context of site commission payments, since many security and surveillance costs would be excluded under the proposed instructions. The Commission agrees and revises the instructions accordingly.
20. The Commission declines, however, to adopt a proposal that it collect more detailed information on security and surveillance costs spanning over 30 suggested categories of information. The Commission agrees with certain ICS providers that the requested level of granularity would be
21. Finally, the Commission declines to address the issue of what categories, if any, of security and surveillance costs may be recoverable through interstate and international ICS rates. That issue is expressly teed up in the Commission's 2021 ICS Notice and is a matter for the Commission to decide as part of its rulemaking proceeding. The record confirms it is not the proper subject of this data collection Bureau-level Order.
22. Although the Commission declines to modify the definition of “Revenue-Sharing Agreement” as discussed below, the Commission revises the instructions to require providers to identify the payor and payee in each Revenue-Sharing Agreement, as requested by PPI. The Commission agrees that this additional information indicating the flow of funds between such entities will shed useful light on revenue-sharing practices and help the Commission better understand how the marketplace for these agreements functions.
23. Video Calling Services. One commenter requests that the Commission expands the data collection to require the reporting of detailed cost and other data specifically on providers' video calling services. As an initial matter, the Commission requires providers to report costs for non-ICS services, including any video services they offer. The Commission declines, however, to require providers to report detailed cost and other data on video services at this time. In
24. Additional Data Concerning Contracts. The Commission also declines to adopt requests that it collect all contracts between ICS providers and correctional facilities. Although collection of all, or a sample of, such contracts might assist the interpretation of facility-level data, the Commission finds at this time that the burden on providers of such a collection would outweigh any possible benefits, and would substantially increase the administrative burdens associated with processing the related data. Given that the Commission has authority to ask providers to produce specific contracts at any time if the need arises, the Commission declines to impose such an obligation at this time. The Commission made no reference to video services in the guidelines it directed WCB/OEA to use in developing the data collection.
25. Information Concerning Patent Assets/Royalty Expenditures. The Commission is not persuaded to expand the collection to obtain information concerning the potential use of patents as a tool for dominant carriers to prevent competition, as one commenter asks. The commenter does not articulate why or how the information it requests, such as the identity of the payor/licensor or a copy of any contract, would aid the Commission's review of inmate calling services costs and pricing. The Commission also finds that the production of this information would lie outside the scope of this collection while unduly burdening providers. Accordingly, the Commission declines to require providers to submit information regarding patents.
26. Miscellaneous. The Commission revises all references to “credit card” in the instructions and templates to instead refer to “payment card,” a change that will avoid confusion and help us obtain data associated with both debit and credit cards. The Commission clarifies that this adopted revision only relates to this data collection and does not extend to definitions contained in the Commission's rules. The Commission, declines, however, to create three new call categories: (1) Traditional billed calls (paid for by end users), (2) facility-paid calls, and (3) unbilled calls (for which carriers receive no compensation). The Commission finds the creation of these new reporting categories unnecessary and that the burdens associated with requiring providers to classify each call into one of these three new categories outweigh the potential benefits.
27. The Commission revises the relevant portions of the instructions to require providers to submit individual-facility data where multiple facilities are covered by a single contract. As the record reflects, providers with multi-facility contracts often merge or repeat the same data for several facilities covered by a single contract. Where the responsive data are available, ICS providers must submit individual data for each facility even if that facility is covered by the same contract as other facilities. The Commission declines, however, a request to require providers to submit separate, unredacted site commission data. Although certain site commission data may be publicly available, the Commission cannot properly prejudge potential provider requests for confidential treatment of other site commission data. Instead, any such requests will be evaluated in accordance with the Protective Order in this proceeding. Filings containing legitimate confidential information can be appropriately redacted and filed pursuant to the guidance and limitations set forth in the Protective Order and the standard set forth in section 0.459 of the Commission's rules.
28. The Commission also implements the proposal to allow ICS providers to elect whether to use the default weighted average cost of capital (WACC) of 9.75% or an alternative WACC. If an ICS provider chooses to use a higher alternative WACC, the provider must submit a narrative response fully documenting and justifying the alternative. The Commission reminds providers that if they elect to claim a WACC greater than 9.75% and do not fully document, explain, and justify their calculations, then WCB/OEA may apply the default WACC of 9.75% instead. The Commission agrees with the Public Interest Parties' argument that an adequate response requires providers to submit calculations and work papers as both are necessary to establish that the provider's alternative WACC estimate reflects the provider's own and a demonstrably comparable-group of firms' financial data and economic circumstances, the use of widely accepted methods to estimate debt and equity costs and capital
29. Accounting Entity, Affiliate, Business Segment, and Company. The Commission adopts the definitions of “Accounting Entity,” “Affiliate,” “Business Segment,” and “Company” set forth in the proposed instructions. Although the Commission appreciate concerns that these definitions could be read to allow selective reporting that would adversely affect the results of the data collection, as the Commission explains, the Commission finds it unnecessary to revise the definition of “Company” to mean “`the legal entity that contains the Accounting Entity.'” Investments and expenses to be assigned, attributed, or allocated to or among Inmate Calling Services, Automated Payment Service, Live Agent Service, Paper Bill/Statement Service, Other Ancillary Services, and non-ICS Services are presumptively limited to those investments and expenses reflected in the existing financial reports that are routinely and specifically prepared for the accounting entity for management, shareholder, or creditor review. The provider may rebut this presumption with data and analysis but faces a high bar given the obvious incentives to shift investments and expenses to rate-regulated services. Although the Commission appreciates concerns that these definitions could be read to allow selective reporting that would adversely affect the results of the data collection, the Commission finds it unnecessary to revise the definition of “Company” to mean “the legal entity that contains the Accounting Entity.” As noted above, this data collection is not the appropriate vehicle to modify the Commission's existing rules. Accordingly, commenter suggestions that urge the Commission to change the definitions of terms contained in the Commission's rules are also outside the scope of this data collection.
30. Accordingly, the Commission adheres to the proposal to define “Company” as synonymous with “Accounting Entity,” which means “the smallest group of separate Business Segments that collectively account for 100% of the Provider's ICS-Related Operations and ICS-related investments, expenses, and revenues.” Together with “Business Segment,” these terms ground the cost-reporting process in existing financial reports, while allowing us to avoid the cost allocation issues and reporting issues that adversely impacted the Commission's earlier mandatory data collections. In contrast, the definition of “Company” suggested by one commenter would broaden the scope of the cost-reporting process significantly without improving cost-reporting results. If a calling services provider organizes its operations in a manner aimed at inflating its reported costs of providing calling services to incarcerated people, that fact should be apparent in the provider's response to the data collection.
31. Security Services. The Commission revises the proposed definition of “Security Services” to prevent an overinclusive reading of the term. The revised definition is as follows: “Security Services means any security and surveillance system, product, or service that a Provider supplies to a Facility, including any such system, product, or service that allows Incarcerated Persons to make telephone calls as permitted by the Facility; helps the Facility ensure that Incarcerated Persons do not call persons they are not allowed to call; helps monitor and record on-going calls; or inspects and analyzes recorded calls. Security Services also include other related systems, products, and services, such as a voice biometrics system, a PIN system, or a system concerning the administration of subpoenas concerning telephone calls. The classification of a system, product, or service as a Security Service does not mean that it is part of a Provider's ICS-Related Operations.” Under the proposed definition, “Security Services” would include “any security and surveillance system, product, or service that a Provider supplies to a Facility” as well as “any service that allows Incarcerated Persons to make telephone calls as permitted by the Facility.” As commenters explain, this proposed definition could “encompass a wide variety of non-security related services” or “would classify all ICS costs as `security services.” The Commission agrees that, without amendment, the definition could skew provider responses. The revised definition removes this ambiguity, and also addresses concerns that the proposed definition is unclear and potentially overbroad. For further clarity, the Commission also removes the last sentence from the proposed definition as unnecessary and potentially confusing, in accord with comments in the record. The related requests for information the Commission adopts ask providers to identify and describe supplied Security Services in the context of In-Kind Site Commissions or ICS-related Operations. “ICS-Related Operations means the actions or tasks performed by the Provider or authorized personnel to deliver Inmate Calling Services and related Ancillary Services to Incarcerated Persons and those they call, including but not limited to billing, customer service, and other requirements as determined by contract or by law. It excludes all Site Commission payments, including In-Kind Site Commission payments.”
32. Revenue-Sharing Agreement. The Commission declines to adopt the suggestion that it narrow the definition of “Revenue-Sharing Agreement” so that it applies only to “a contract for services to be rendered by an Affiliate or Third Party, which also provides for payments to the Provider.” The Commission concludes that the proposed definition is tailored to identify the general relationship between the provider and the contracted party or parties within the specific context identified in each of the related information requests, including the scenarios discussed in the record. Because the definition encompasses agreements regarding the provision of ICS or any ancillary service that “directly or indirectly” result in payments to providers, it encompasses both the practices of concern identified in the record and any additional, as yet undisclosed, revenue sharing practices in which providers have engaged.
33. Site Commission-Related Definitions. The Commission also does not modify the definition of “Monetary Site Commission” to include site commissions that “take the form of a payment in money or an equivalent accounting entry.” Doing so would obscure the data regarding site commissions, rather than bring clarity to it. As proposed, the instructions intentionally delineate between monetary site commissions and in-kind site commissions by focusing on the actual exchange of money. This proposal would effectively reclassify an in-kind site commission, like the provision of certain equipment, as a monetary site commission, collapsing the distinction the Commission intends to capture between in-kind site commissions and monetary site commissions. The Commission does agree, however, with PPI's suggestion that it clarify that the definition of “Contractually Prescribed Site Commissions” excludes legally mandated site commission payments even when such legally mandated
34. Capital Expenses. The Commission finds it unnecessary to make the definition of “Capital Expenses” more comprehensive by specifically “captur[ing] expenditures on intangible assets such as technology licenses o[r] expenses on software.” The current definition already includes annual amounts related to the amortization of capitalized expenditures on such intangible assets. This clarification appropriately recognizes that a contract for the provision of inmate calling services may recite or incorporate state mandates for the payment of site commissions that are not the type of discretionary negotiated payments contemplated by the term “Contractually Prescribed Site Commissions.”
35. Average Daily Population. On its own motion, the Commission revises the definition of “Average Daily Population” to make clear that data reported for that measure must reflect actual populations, rather than any estimate. A provider unable to provide exact ADP data must provide its best estimate and, in the Word template, indicate that fact and provide the basis for its estimate.
36. The Commission expands the proposed reporting period from one year to three years for the entire Mandatory Data Collection, including the cost data, as supported by the record. This action revises the proposal to generally collect data for each calendar year from 2019 through 2021, but to limit the collection of cost data to only calendar year 2021. Commenters, including both service providers and public interest groups, convince us that collecting cost data for three years will help prevent atypical, one-time expenses from being considered normal company costs, which they argue is a potential downside to collecting only a single year's cost data. This potentiality becomes particularly acute if providers incurred large one-time costs related to COVID-19, as the record suggests may have happened. Additionally, the Commission finds that the difference in burden between providing one year versus three years of cost data is marginal and far outweighed by the benefits of collecting cost data for three years. The adoption of a three-year reporting period also accounts for providers that argue that data for the year 2021 is the most relevant and the best indicator of costs. The three-year reporting period the Commission adopts includes the year 2021 such that if that year proves most relevant, the collected information will speak for itself. Further, the Commission finds that adopting a consistent three-year period for all the data requests will reduce confusion among reporting providers, as well as include the one-year time period prior to any anomalous effects caused by the COVID-19 pandemic. In inviting comment on the proposed instructions and templates, the Commission asked commenters how it should “require providers that track costs only on a contract level to respond.” GTL offers no specific proposal for how the Commission could structure contract-level reporting to avoid the issues the Commission encountered in the Second Mandatory Data Collection. GTL argues that this average “grossly underestimate[s]” providers' response times for that data collection as outlined in that
37. The Commission adopts the proposed requests for financial data set forth in the Public Notice and accompanying draft instructions and template—including conformance with generally accepted accounting principles—with a few minor exceptions suggested by the record as reflected herein. GTL argues that the financial data requests are “impossible to satisfy,” are formatted specifically for dominant carriers, and are beyond the Commission's authority. The Commission disagrees. GTL fails to provide any specific explanation for why it would not be able to comply with the proposed request. GTL's claims are also contradicted by the comments of other providers, indicating that ICS providers “already have access” to the requested data, and that the requests are “consistent with existing ICS provider recordkeeping practices.” The Commission agrees with PPI that any purported similarity to accounting rules for dominant carriers is “irrelevant,” especially when corporations are “frequently called upon to reformat [accounting] information for different reporting purposes.” Finally, collecting this financial information is well within the Commission's statutory authority and the authority the Commission delegated to WCB/OEA for this collection.
38. The Commission declines one commenter's request that the Commission eliminate the proposed reporting concerning non-ICS services, as well as its suggestion that mandating such reporting is beyond the Commission's authority. Collecting the requested information regarding non-ICS services is essential if the Commission is to ensure that, consistent with section 201(b) of the Communications Act, the costs relied upon to set rates for regulated services—in this case, ICS and associated ancillary services—do not include the costs of nonregulated activities. Additionally, this information will help the Commission verify the accuracy and reasonableness of providers' cost allocations. Although the commenter complains of the burden involved in providing this information, the instructions enable providers to report non-ICS services' costs collectively, substantially reducing the burdens that would otherwise be associated with providing more granular information about the costs of nonregulated services. In addition, many rows of the data requests will not apply to non-ICS services, in which case providers only have to report amounts for relatively general categories such as “Maintenance, repair, and engineering of site plant, equipment, and facilities,” which should further limit the burden involved. At the same time, the Commission declines to broaden the financial data requests to include federal income taxes paid, because the
39. The Commission adopts the cost allocation procedures as proposed in the Public Notice and decline to implement alternative proposals for the reasons that follow. As the Public Interest Parties recognize, “[t]he Third MDC provides a detailed methodology for providers to implement the allocation consistently.” The instructions require providers to fully document, explain, and justify all cost allocations they make. This already comprehensive requirement obviates the need to yield to record requests that the Commission provide examples and guidance regarding direct attribution, or that the Commission provide more detailed information on the methodology for such allocations. Other commenters seek revisions to the allocation of common costs relying on direct costs, either by allowing alternative methodologies of common cost allocation, or by suggesting that the Commission should consider whether, or when, additional common cost allocation metrics are appropriate. The Commission declines to modify the instructions requiring a direct cost allocation of common costs. While the Commission is aware that using direct costs to allocate common or indirect costs “can be a problem if the direct costs are a very small share of total costs,” the Commission notes that this cost allocation method is the last two steps in a hierarchy of methodologies. Thus, the Commission does not expect it to be used for a significant portion of any provider's costs, assuming each provider does its due diligence with respect to identifying and measuring the actual factors that drive its costs. Authorizing alternative approaches to the allocation of common costs would sacrifice the desired uniformity in the allocation process. The Commission similarly declines a request that it reorder the third and fourth cost allocation steps. The Commission finds no sound reason why the inversion of these two steps would be beneficial or efficient.
40. Other comments suggest adding a contract-level allocation step to the hierarchy of allocation instructions. However, the instructions already explain that contract-level costs that are not directly assignable to facilities are to be treated as shared costs and provide steps for allocating such shared costs. The Commission finds no reason to make any changes to these instructions. The Commission is also unpersuaded that an allocation methodology based upon ADP will result in improved cost attribution, as one of the key objectives of the data collection is to ascertain from the cost data how costs vary among facilities that have different ADPs.
41. The Commission implements the proposal to require providers to submit data both at the company-wide level and at the correctional facility level. However, the Commission adjusts the reporting of operating expenses between the company-wide level and the facility level to ensure consistency in reporting of these expenses at all levels and to avoid imposing additional burdens on reporting providers. The Commission disagrees with commenters that argue that providers should be able to report cost information only at the contract level. The Commission finds that making such a change would substantially increase the likelihood of recreating the same data issues the Commission confronted in the context of the Second Mandatory Data Collection.
42. The Commission initially proposed an allocation of operating costs for facilities that differed from that sought at the company level. The record persuades us to revise the requirements on the allocation of operating costs among facilities to parallel the level of disaggregation required at the company level. As Securus explains, the proposed instructions would require 16 categories of operating expenses to be reported at the company level, but only four categories of operating expenses to be reported at the facility level. Securus explains that requiring similar levels of disaggregation for both company and facility data “would assist the Commission in identifying the different cost drivers between larger and smaller facilities” and “help the Commission and interested parties understand and validate the cost-causative methodologies used.” The Commission agrees that adopting a similar level of disaggregation for facility data as for company-wide data will yield more useful cost allocation results. In addition, requiring consolidation of accounts at the facility level appears to require an additional step for providers, thereby imposing an unnecessary burden. As the Commission seeks to maximize the benefits of the data collection while minimizing burdens to the extent possible, the Commission concludes that the same level of disaggregation should be required for both company-wide and facility-specific data. Considering that the Commission adopts facility-level disaggregation of operating expenses, the Commission clarifies that providers may use the same number of allocators they would have used to allocate expenses from the company-wide disaggregated accounts to the facility-level consolidated accounts. Thus, providers may use the same allocators for more than one cost category, instead of a separate allocator for each cost category. The proposed instructions and Excel template required: (a) 16 categories of operating expenses to be reported at the company-wide level (site commissions are included); (b) 15 to be reported at the company-wide, service specific level (site commissions are excluded); and (c) four to be reported at the facility-specific, ICS level (reflecting an aggregation of the company-wide, service specific categories). The Commission modifies these instructions and the template to require 15 categories of operating expenses to be reported at the facility-specific, ICS level. (Site commissions are excluded.)
43. The Commission declines to adopt GTL's proposal to permit providers to report information on a contract-only basis, rather than at the company and facility levels. GTL claims that reporting information at the company and facility levels would be “directly contrary to the Commission's finding that `many providers assess their inmate calling services operations on a contract-by-contract basis.'” The Commission disagrees. The Commission made this observation in connection with its analysis of the responses to the Second Mandatory Data Collection and identified contract-level reporting as one of the principal limitations in the reported data. In requiring the Third Mandatory Data Collection, the Commission directed WCB/OEA to “incorporate lessons learned from the two prior data collections” and to “[e]nsure that the provider has directly assigned to specific contracts or facilities investments and expenses directly attributable to inmate calling services to the extent feasible.” The decision to require facility-level reporting instead of contract-level reporting is a direct response to the Commission's directives to avoid a repeat of the problems that affected prior data collections. Accordingly, the Commission is unpersuaded that it should permit contract-level reporting, especially considering that other ICS providers support facility-level reporting.
44. The Commission adopts the proposal to require all providers to
45. The Commission's actions in this Order shall be effective on the date specified in a document to be published in the
46. Pursuant to the Commission's directive set forth in the 2021 ICS Order, responses to this Third Mandatory Data Collection will be due 120 days after WCB announces in a public document that OMB has approved the data collection.
47. Supplemental Final Regulatory Flexibility Act Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared a Supplemental Final Regulatory Flexibility Analysis (FRFA) relating to this Order.
48. Final Paperwork Reduction Act Analysis. The Order contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to OMB for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198; see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. The Commission has assessed the effects of the data collection on small business concerns, including those having fewer than 25 employees, and find that to the extent such entities are subject to the collection, any further reduction in the burden of the collection would be inconsistent with the objectives behind the collection.
49. Congressional Review Act. The Commission will not send a copy of this Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act (CRA), see 5 U.S.C. 801(a)(1)(A), because it does not adopt any rule as defined in the CRA, 5 U.S.C. 804(3).
1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Wireline Competition Bureau (WCB) and the Office of Economics and Analytics (OEA) (collectively, WCB/OEA) have prepared this Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) of the possible significant economic impact on small entities by the policies and rules adopted in this Order pertaining to the forthcoming Third Mandatory Data Collection for inmate calling services (ICS). A Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) was included with a Public Notice seeking comment on proposals to implement the Third Mandatory Data Collection in the Commission's Inmate Calling Services proceeding. WCB/OEA sought written public comment on the proposals in that Notice, including comment on the Supplemental IRFA. WCB/OEA did not receive comments directed toward the IRFA. The Commission will send a copy of the Order, including this Supplemental FRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the Order and the Supplemental FRFA (or summaries thereof) will be published in the
2. In this Order, WCB/OEA adopt policies and specific requirements to implement the forthcoming Third Mandatory Data Collection for ICS. In the 2021 ICS Order, the Commission adopted a new data collection requirement. The Commission determined that this data collection would enable it to adopt permanent interstate and international rate caps, protect consumers against unjust and unreasonable ancillary service charges, and improve its continuing review of the inmate calling services marketplace.
3. Pursuant to their delegated authority, WCB/OEA have prepared instructions and a template for the Third Mandatory Data Collection and are issuing the Order to adopt all aspects of these documents.
4. WCB/OEA did not receive comments specifically addressing the rules and policies proposed in the Supplemental IRFA.
5. The Chief Counsel did not file any comments in response to the rules and policies proposed in the Supplemental IRFA.
6. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the Third Mandatory Data Collection. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
7. Regulatory Flexibility Analyses were incorporated in the 2020 ICS Notice, 2021 ICS Order, and the Third MDC Proposal document. In those analyses, the Commission described in detail the small entities that might be affected. Accordingly, in this Order, for the Supplemental FRFA, the Commission hereby includes by reference the descriptions and estimates of the number of small entities from these previous Regulatory Flexibility Analyses.
8. The Third Mandatory Data Collection requires ICS providers to submit, among other things, data and other information on calls, demand, operations, company and contract information, information about facilities served, revenues, site commission payments, and ancillary fees. WCB/OEA estimate that approximately 20 ICS providers will be subject to this one-time reporting requirement. In the aggregate, WCB/OEA estimate that responses will take approximately 47,100 hours and cost approximately $418,570.
9. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rules for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”
10. The Third Mandatory Data Collection is a one-time request and does not impose a recurring obligation on providers. Because the Commission's 2021 ICS Order requires all ICS providers to comply with the mandatory data collection, the collection will affect smaller as well as larger ICS providers. WCB/OEA have taken steps to ensure that the data collection template is competitively neutral and not unduly burdensome for any set of providers and have considered the economic impact on small entities, as identified in comments filed in response to the Third MDC Proposal document and the Supplemental IRFA, in finalizing the instructions and the template for the Third Mandatory Data Collection. In response to the comments, WCB/OEA have refined certain aspects of the data collection, including by expanding the reporting period for cost data, revising certain proposed definitions, and reorganizing the manner in which providers report certain costs. These modifications avoid unduly burdening responding providers while ensuring that providers have sufficiently detailed and specific instructions to respond to the data collection.
11. The Commission will send a copy of the Order, including this Supplemental FRFA, in a report a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, the Commission will send a copy of the Order, including this Supplemental FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Order, and Supplemental FRFA (or summaries thereof) will also be published in the
12. Accordingly,
13.
The following appendix, Third Mandatory Data Collection Instructions and Template, will not appear in the Code of Federal Regulations.
In the
The Commission directed WCB/OEA to develop a template and instructions for the collection. The Commission also directed that WCB/OEA consider, in designing the data collection, various suggestions regarding data granularity, cost allocation, and specificity in definitions and instructions received from parties in response to the
These instructions and the accompanying template are designed to implement the Commission's directives. The template consists of a Word document and Excel spreadsheets. For simplicity, we refer to these respective portions of the template as the Word template and the Excel template.
Our instructions first identify the entities which we require to respond to this data collection. We then review the information we require them to provide and describe the procedure for submitting the requisite responses.
Throughout these instructions, the terms “you” and “your” refer to any entities directed to respond to these data requests which qualify as Inmate Calling Service Providers as we define them below.
You may contact the Commission staff at
All ICS Providers, as defined in our rules and as further described below, must submit complete, accurate, and truthful responses to this data collection. See Part III, below, for the definition of “ICS Provider.” Each group of affiliated Providers shall respond as a single entity, regardless of the number of separately incorporated companies or other entities within that group that provide ICS. See Part III, below, for the definitions of “Accounting Entity” and “Affiliates,” which collectively make clear which entities must file responses to this Data Collection.
A Subcontractor is included as an entity acting as an ICS Provider if it partners with or serves an ICS Provider which holds a direct contractual relationship with a correctional authority, and also, for example, completes calls for ICS Customers, bills Customers for those calls, and retains the revenue from those calls. Subcontractors are therefore not exempted from the definition of an ICS Provider on the grounds that they lack a direct contractual relationship with a correctional authority. Alternatively, where a Subcontractor completes calls but the ICS Provider bills Customers for those calls and then pays the Subcontractor, that Subcontractor may
Providers (and all Subcontractors thereof who meet the definition herein) must complete all portions of this data collection unless otherwise indicated. Section II.C below provides instructions as to how certain data shall be reported.
You must fully and completely respond to each request for information in this data collection by using the Word and Excel templates attached to these instructions. Providers must report their information according to the best information in their possession, custody, or control.
Your full response shall consist of several parts:
(1) A Word document containing responses that require a narrative explanation (see Appendix A to these instructions);
(2) An Excel spreadsheet containing responses that indicate specific numbers, percentages, and or information (see Appendix B to these instructions);
(3) An audited financial statement or report for each Year from 2019 through 2021; and
(4) A signed certification of truthfulness, accuracy, and completeness (see Appendix C to these instructions).
The Word and Excel templates and any additional spreadsheets must be submitted in machine-readable and manipulatable formats. As indicated, you also must submit an audited financial statement or report for each Year from 2019 through 2021, or similar documentation, to the extent they have been produced in the ordinary course of business. Additionally, all responses must be accompanied by a certification by an officer of the Provider that, based on information and belief formed after reasonable inquiry, the statements and information contained in the submission are true, accurate, and complete. You must complete the certification form provided in Appendix C before submitting your response. Submissions made without a completed certification form will be rejected and returned for correction and resubmission.
We caution Providers that they must proceed in good faith and with absolute candor in responding to this data collection. We also caution that any failure to timely file an accurate, complete, and truthful response to this data collection may subject the Provider to sanctions, including, but not limited to, monetary forfeitures.
As a general matter, these instructions direct you to enter your responses to requests for certain information or numbers at specific places in these appendices. Where these instructions require you to provide the workpapers, formulas, calculations, or data underlying your responses, report and display the required information as clearly and succinctly as possible.
Narrative responses are to be provided in the Word template. Use that template to provide any additional information needed to ensure that your response is full and complete, and to identify and explain any caveats associated with your response. The Word template shall also include formulas, explanations, and appropriate references for calculations, where necessary, including any explanations needed to make your entries on the Excel template transparent and understandable.
Unless otherwise stated, use the Excel template to provide your responses to the inquiries that follow. As a general matter, your entries on that template will be for specific numbers or percentages (
Where indicated, please provide your responses for the three-year Reporting Period—from January 1, 2019, to December 31, 2021. Where inquiries do not specify a format for the Reporting Period, answer the question on a year-by-year basis, rather than in the aggregate for the Reporting Period.
You must submit a valid entry on the designated template in response to each request in this data collection. If a request does not apply to your Company, enter “N/A” in the appropriate field, and use the Word document to fully explain the reasons for this response. If your responses are deemed incomplete or are not submitted in the required format, your filing may be rejected and returned to you for correction and resubmission.
The Commission will submit this data collection, including all required forms, to the Office of Management and Budget (OMB) for its approval under the Paperwork Reduction Act of 1995, Public Law 104-13. Within seven business days of our receiving that approval, we will issue a Public Notice announcing that approval and setting the deadline by which you must submit your response to this data collection, which will be 120 days after we issue the Public Notice announcing OMB approval. We also will publish a notice in the
You must submit public versions of your response by filing and certifying the completed templates and certification form electronically, using the Commission's Electronic Comment Filing System (ECFS), by accessing the ECFS at
You may file any information that you believe should be afforded confidential treatment pursuant to the guidance and limitations in the
If your response is not completed properly, it may be rejected and/or returned to you. For further information and any questions on completing your response, please contact Erik Raven-Hansen, Wireline Competition Bureau, Pricing Policy Division, at 202-418-1532 or at
This Part sets forth the information you must provide in your response to this data collection. In some cases, the data are to be reported on the attached Word template, while other questions require a narrative response on the Excel template. In general, this Part proceeds from the general (Company-level data) to the specific (Facility-level data).
This Part begins by asking you to provide general information about your Company, including information pertaining to your ICS-Related Operations. Next, we direct you to provide financial data and related information at the Company level. We then direct you to disaggregate that financial information into service-specific categories and provide detailed instructions regarding cost allocation in connection with this step. We also instruct you how to report data where a Provider has an agreement with another entity for the provision of ICS. Next, we require you to report Company-level Ancillary Services and Site Commission data, followed by data regarding transactions with Affiliates. Finally, following the instructions for reporting Company-level data, we direct you to report certain financial information at the Facility level.
This section directs you to provide general information and data about your Company and its Affiliates, among other matters, in total for the Reporting Period, unless otherwise specified.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(a) List all non-ICS Business Segments that the Company engaged in during the Reporting Period.
(b) Provide the Billed Revenues for each listed Business Segment during each Year of the Reporting Period.
(c) In the Word template, describe generally the operations of each listed non-ICS Business Segment.
(d) List all non-ICS Business Segments the Company or an Affiliate provided at or for Facilities, or to Incarcerated Persons or those they call, during the Reporting Period. List all such Business Segments even if the Company or Affiliate provided them only at some Facilities.
(e) In the Word template, describe in detail all non-ICS Business Segments the Company or an Affiliate provided at or for Facilities, or to Incarcerated Persons or those they call, during the Reporting Period.
(f) In the Word template, describe in detail how, if at all, the Company's ICS Business Segments and non-ICS Business Segments interact with each other.
(10)
(a) List each type of asset that the Company used in its ICS-Related Operations during the Reporting Period.
(b) Provide the Net Investment in each listed type of asset as of December 31, 2021.
(c) List each ICS-Related Product or Service that each listed type of asset supported.
(d) List each non-ICS-Related Product or Service, if any, that each listed type of asset supported.
(11)
(12)
(13)
(a) List all Business Segments in which non-ICS Affiliates engaged during the Reporting Period.
(b) Identify each non-ICS Affiliate that participated in the supply of each Business Segment on your list.
(14)
(15)
(a) Each non-ICS Affiliate that provided those assets or services;
(b) The amounts the Company paid its non-ICS Affiliates for those assets and services; and
(c) The non-ICS Affiliates' Net Investment in those assets and the Annual Total Expenses incurred to provide those services.
(16)
(17)
(18)
(19)
This section provides an overview of your ICS-Related Operations by incorporating information from other sections of your Excel template. You should first enter the data required in those other portions into that template. Once you do that, the data required for this section will automatically be entered into this portion of the template. All of those data will be at the Accounting Entity level.
This section seeks general financial data and other information about the Company and directs you to determine the Annual Total Expenses the Company incurs to provide Inmate Calling Services, Automated Payment Service, Live Agent Service, and Paper Bill/Statement Service during the Reporting Period.
This subsection directs you to provide financial data and other information in the aggregate for the entire Company (
(1)
(2)
(a)
(i) Gross Investment;
(ii) Accumulated depreciation;
(iii) Accumulated amortization;
(iv) Net Investment;
(v) Accumulated deferred federal income taxes;
(vi) Accumulated deferred state income taxes; and
(vii) Customer prepayments or deposits.
(b)
(i) Depreciation;
(ii) Amortization;
(iii) Interest other than interest paid on customer prepayments or deposits;
(iv) Interest paid on customer prepayments or deposits; and
(v) Other income tax-related adjustments.
(c)
(i) Maintenance, repair, and engineering of site plant, equipment, and facilities;
(ii) Origination, switching, and transporting of Interstate, International and Intrastate Communication and termination of Interstate and Intrastate Communication;
(iii) Termination of International Communication;
(iv) Field service;
(v) Network operations;
(vi) Call center;
(vii) Data center;
(viii) Security Services relating to the Company's ICS-Related Operations, non-ICS Operations, or both;
(ix) Payment of Site Commissions;
(x) Billing, collection, client management, and customer care;
(xi) Sales and marketing;
(xii) General and administrative;
(xiii) Other overhead;
(xiv) Taxes other than income taxes;
(xv) Transactions related to mergers and acquisitions; and
(xvi) Bad debt.
(d)
The preceding subsection instructs you to provide financial information at the Company level. We now require you to determine the Annual Total Expenses the Company incurs to provide Inmate Calling Services, Automated Payment Service, Live Agent Service, and Paper Bill/Statement Service for each Year of the Reporting Period. This process involves several steps.
First, we instruct you to assign, attribute, or allocate the reported Company-wide investments and expenses (without separation between federal and state jurisdictions) among Inmate Calling Services, Automated Payment Service, Live Agent Service, Paper Bill/Statement Service, Other Ancillary Services, and non-ICS Services in accordance with the cost allocation instructions set forth below. We also instruct you to calculate federal and state income taxes for Inmate Calling Services, Automated Payment Service, Live Agent Service, and Paper Bill/Statement Service. We do not require the reporting of Company-wide federal and state income tax expenses or the reporting of these expenses for Other Ancillary Services or non-ICS Services. We also do not require the reporting of Company-wide amounts for Cash Working Capital, Net Capital Stock, or Return or the reporting of these items for Other Ancillary Services or non-ICS Services.
We next instruct you to provide the results of your cost assignments, attributions, and allocations separately for Inmate Calling Services, Automated Payment Service, Live Agent Service, and Paper Bill/Statement Service, Other Ancillary Services, and non-ICS Services, which shall include amounts for investments, Capital Expenses, and Operating Expenses. We also instruct you to report your federal and state income tax calculations for Inmate Calling Services, Automated Payment Service, Live Agent Service, and Paper Bill/Statement Service.
We then require you to make two elections. We first instruct you to elect whether to use the default Weighted Average Cost of Capital or an alternative Weighted Average Cost of Capital. We then instruct you to elect whether to include an allowance for Cash Working Capital. If you elect an alternative Weighted Average Cost of Capital greater than 9.75% or include an allowance for Cash Working Capital, we require you to report the components of those elections.
We instruct you to provide the Company's Annual Total Expenses (without separation between federal and state jurisdictions) of providing Inmate Calling Services, Automated Payment Service, Live Agent Service, and Paper Bill/Statement Service and to make certain elections relating to adjustments to Annual Total Expenses. Finally, we also instruct you to elect whether to adjust the Company's Annual Total Expenses and thus to report Annual Total Expenses for the federal jurisdiction alone (covering both Interstate and International Communications), either to recognize any cost differentials between interstate/international Inmate Calling Services and intrastate Inmate Calling Services that should be reflected in an interstate rate cap or for any other reason.
You must assign or allocate Company-wide investments and expenses (without separation between federal and state jurisdictions) among Inmate Calling Services, Automated Payment Service, Live Agent Service, Paper Bill/Statement Service, Other Ancillary Services, and non-ICS Services using the hierarchy of methods specified below. For purposes of these cost allocation instructions, Inmate Calling Services, Automated Payment Service, Live Agent Service, Paper Bill/Statement Service, Other Ancillary
(1) First, to the extent possible, directly assign investments used exclusively to provide a particular service to that service; likewise, to the extent possible, directly assign expenses incurred exclusively to provide a particular service to that service. Calculate federal and state income taxes separately for Inmate Calling Services, Automated Payment Service, Live Agent Service, and Paper Bill/Statement Service as specified in items 7 and 8 below.
(2) Second, group shared investments and expenses into shared investment and expense categories based on business function, activity, or task. Group common investments and expenses into common investment and expense categories based on business function, activity, or task.
(a) Any investments and expenses that are not directly assignable to a specific service are shared or common investments and expenses.
(b) Shared investments are for assets used exclusively to supply a specific subset of services that are not assignable or attributable to a particular service. Shared expenses are expenses incurred solely to supply a specific subset of services that are not assignable or attributable to a specific service.
(c) Common investments are for assets not assignable or attributable to a specific service or subset of services. Common expenses are expenses that are not assignable or attributable to a specific service or subset of services.
(3) Third, to the extent possible, directly attribute categories of shared investments and expenses, and categories of common investments and expenses, to particular services based on direct analysis of factors that cause a particular business function, activity, or task and thus investments or expenses to increase or decrease.
(4) Fourth, where neither direct assignment nor direct attribution is possible, allocate categories of shared investments and expenses, and categories of common investments and expenses, to particular services based on an indirect, cost-causative link to another investment and expense or another investment or expense category (or group of categories) for which direct assignment or attribution is possible.
(5) Fifth, where none of the methods described above is possible, allocate categories of shared investments and expenses to the particular services that share the investments and expenses in proportion to each service's share of the total of all investments or expenses already directly assigned or attributed to these particular services. Allocate categories of common investments and expenses to particular services in proportion to each service's share of the total of all investments or expenses already directly assigned or attributed to all services.
(6) The sums of the investment and expense amounts assigned to, attributed to, or allocated among Inmate Calling Service, Automated Payment Service, Live Agent Service, Paper Bill/Statement Service, Other Ancillary Services, and non-ICS Services shall equal the total investment and expense amounts respectively reported for the Company above (excluding federal and state income taxes, Cash Working Capital and Net Capital Stock, which are only reported for Inmate Calling Service, Automated Payment Service, Live Agent Service, Paper Bill/Statement Service).
(7)
(8)
(9) Fully document, explain, and justify all cost assignments, attributions, and allocations using the Word template and submit additional workpapers developed using Excel spreadsheets.
Report the results of your cost assignments, attributions, and allocations separately for Inmate Calling Services, Automated Payment Service, Live Agent Service, Paper Bill/Statement Service, Other Ancillary Services, and non-ICS Services on the Excel template, as specified below. Report your federal and state income tax calculations separately for Inmate Calling Services, Automated Payment Service, Live Agent Service, and Paper Bill/Statement Service on the Excel template, as specified below.
(1)
(a) Gross Investment;
(b) Accumulated depreciation;
(c) Accumulated amortization;
(d) Net Investment;
(e) Accumulated deferred federal income taxes;
(f) Accumulated deferred state income taxes;
(g) Customer prepayments or deposits;
(h) Cash Working Capital (see d.(1) and (2) below); and
(i) Net Capital Stock.
(2)
(a) Depreciation;
(b) Amortization;
(c) Weighted Average Cost of Capital (see c.(1) and (2) below);
(d) Return;
(e) Interest other than interest paid on customer prepayments or deposits;
(f) Interest paid on customer prepayments or deposits;
(g) Other income tax-related adjustments;
(h) Federal taxable income;
(i) Federal income tax rate;
(j) Federal income tax gross-up factor;
(k) Federal income tax;
(l) Federal income tax not deductible for state income tax purposes;
(m) State taxable income;
(n) State income tax rate;
(o) State income tax gross-up factor; and
(p) State income tax.
(3)
(a) Maintenance, repair, and engineering of site plant, equipment, and facilities;
(b) Origination, switching, and transporting of Interstate, International and Intrastate Communication and termination of Interstate and Intrastate Communication;
(c) Termination of International Communication;
(d) Field service;
(e) Network operations;
(f) Call center;
(g) Data center;
(h) Security Services relating to the Company's ICS-Related Operations, non-ICS Operations, or both;
(i) Billing, collection, client management, and customer care;
(j) Sales and marketing;
(k) General and administrative;
(l) Other overhead;
(m) Taxes other than income taxes;
(n) Transactions related to mergers and acquisitions; and
(o) Bad debt.
(1) Elect, by checking the appropriate box on the Excel template, whether to use the default Weighted Average Cost of Capital of 9.75% (which is the Commission's currently authorized rate of return for incumbent local exchange carriers regulated on a rate-of-return basis) for each Year of the Reporting Period or an alternative Weighted Average Cost of Capital reflecting the Company's own and a demonstrably comparable-group of firms' financial data and economic circumstances, use of widely accepted methods to estimate current debt and equity costs and capital structure, and the collective risks of providing ICS, Automated Payment Service, Live Agent Service, and Paper Bill/Statement Service.
(2) If you elect to use an alternative Weighted Average Cost of Capital greater than 9.75%, report on the Excel template the components of the Company's current Weighted Average Cost of Capital and the Weighted Average Cost of Capital itself, as specified below. Use this singular estimate of the Company's current Weighted Average Cost of Capital to calculate Return for each Year of the Reporting Period. In the Word template, fully document by submitting data, formulas, cost of equity analyses using, for example, the Discounted Cash Flow Model or Capital Asset Pricing Model, calculations, and worksheets, explain, and justify the development of each claimed component. Failure to fully document, explain, and justify each claimed component may result in the application of the default Weighted Average Cost of Capital of 9.75%.
(a) Cost of debt;
(b) Cost of preferred stock;
(c) Cost of equity;
(d) Total debt outstanding in dollars and as a percent of total capital outstanding (the sum of debt, preferred stock, and equity outstanding);
(e) Total preferred stock outstanding and as a percent of total capital outstanding;
(f) Total equity outstanding and as a percent of total capital outstanding; and
(g) Weighted Average Cost of Capital.
(1) Elect, by checking the appropriate box on the Excel template, whether to include an allowance for Cash Working Capital in the Company's Net Capital Stock.
(2) If you elect to include an allowance for Cash Working Capital in the Company's Net Capital Stock, report the allowance claimed for each Year of the Reporting Period on the Excel template separately for: (a) Inmate Calling Services; (b) Automated Payment Service; (c) Live Agent Service; and (d) Paper Bill/Statement Service. Submit a lead-lag study or the equivalent that estimates the average number of days between the payment of expenses and the receipt of revenues and average daily cash expenses as support for each claimed allowance. Fully document, explain, and justify each claimed allowance in the Word template.
(1) Report Company-wide Annual Total Expenses separately for: (a) Inmate Calling Services; (b) Automated Payment Service; (c) Live Agent Service; and (d) Paper Bill/Statement Service. Exclude reported interest expense other than interest paid on customer prepayments or deposits from Annual Total Expenses. The allowance for interest expense other than interest paid on customer prepayments or deposits is included in the Return component of the Annual Total Expenses calculation. Include reported interest paid on customer prepayments or deposits in Annual Total Expenses. Exclude expense reported for termination of International Communication from Annual Total Expenses.
(1) In the Word template, state whether the Company elects to further separate its investments, expenses, Net Capital Stock, and Annual Total Expenses between interstate/international and intrastate Inmate Calling Services, Automated Payment Service, Live Agent Service, and Paper Bill/Statement Service to reflect any measurable differences between the cost incurred to provide interstate/international and intrastate services. If you elect to separate the Company's investments, expenses, Net Capital Stock, and Annual Total Expenses between interstate/international and intrastate Inmate Calling Services, Automated Payment Service, Live Agent Service, and Paper Bill/Statement Service, you must: (a) Fully document, explain, and justify this separation in the Word template; and (b) submit additional Excel spreadsheets, similar in design and level of data disaggregation to those in the Excel template, showing in detail each aspect of the Company's separations processes. These showings in the Word template and Excel spreadsheets must fully document and justify each aspect of the processes by which the separated interstate/international Inmate Calling Services investment and expenses are further assigned, attributed, or allocated to or among each of the Company's Facilities, and how the Net Capital Stock and Annual Total Expenses for each of these Facilities are developed. Electing this cost allocation option does not relieve the Company of its obligation to report its unseparated investments, expenses, Net Capital Stock, and Annual Total Expenses in the Excel template and in accordance with the instructions for reporting unseparated data.
(2) In the Word template, state whether the Company elects to further adjust its investments, expenses, Net Capital Stock, and Annual Total Expenses developed in accordance with the instructions set out in this document, for any other reason. If you elect to make such an adjustment, you must: (a) Fully document, explain, and justify it in the Word template; and (b) submit additional Excel spreadsheets, similar in design and level of data disaggregation to those in the Excel template, showing in detail each aspect of the Company's adjustments, including all changes to the Company's data, cost allocation procedures, and results. If the Company also elects to further separate its investments, expenses, Net Capital Stock, and Annual Total Expenses as specified in Part IV.C.2.f.(1), above, you also must separately justify and document the impact of any further adjustments in response to this Inquiry upon your
This subsection directs you to report Company-wide data on Site Commissions, Security Services, Ancillary Services, and Affiliate Transactions. It also provides instructions on reporting data and other information where a Provider subcontracts with another entity for the provision of ICS.
(1)
(a) Enter the percentage of the total Site Commissions paid by the Company during each Year of the Reporting Period that were attributable to the Company's ICS-Related Operations.
(2)
(a)
(i)
(aa)
(ii)
(b)
(i) In the Word template, describe these in-kind payments in detail. Specifically describe each Security Service that you classify as an In-Kind Site Commission payment. Also specifically describe any other payment, gift, exchange of services or goods, fee, technology allowance, or product that you classify as an In-Kind Site Commission payment.
(ii)
(aa)
(iii)
(3)
(a)
(i)
(aa)
(ii)
(b)
(i) In the Word template, describe these in-kind payments in detail. Specifically describe each Security Service that you classify as an In-Kind Site Commission payment. Also specifically describe any other payment, gift, exchange of services or goods, fee, technology allowance, or product that you classify as an In-Kind Site Commission payment.
(ii)
(aa)
(iii)
(4)
Reporting in response to the following questions (1) through (3) must be exclusive of the data reported in connection with Site Commissions to prevent double-counting.
(1) On the Excel template, report the total dollar amount of costs the Company incurred to provide the following categories of services for each Year of the Reporting Period.
(a) Law enforcement support services.
(i) In the Word template, identify by name and describe each service you
(b) Call security services.
(i) In the Word template, identify by name and describe each service you classify as a call security service, including a description of the specific tasks and functions covered by this service and whether you routinely offer this service in connection with ICS.
(c) Call recording services.
(i) In the Word template, identify by name and describe each service you classify as a call recording service, including a description of the specific tasks and functions covered by this service and whether you routinely offer this service in connection with ICS.
(d) Call monitoring services.
(i) In the Word template, identify by name and describe each service you classify as a call monitoring service, including a description of the specific tasks and functions covered by this service whether you routinely offer this service in connection with ICS.
(e) Voice biometrics services.
(i) In the Word template, identify by name and describe each service you classify as a voice biometric service, including a description of the specific tasks and functions covered by this service and whether you routinely offer this service in connection with ICS.
(f) Other services.
(i) In the Word template, identify by name and describe each Security Service you provide that is not classified under one of the foregoing subcategories, including a description of the specific tasks and functions covered by each service and whether you routinely offer each service in connection with ICS.
(2) In the Word template, specifically describe each Security Service provided by you that you do not classify as a Site Commission and is
(3) In the Word template, specifically describe any other payment, gift, exchange of goods or services, fee, technology allowance, or product provided for security purposes that you do not classify as a Site Commission payment.
This subsection directs you to provide certain Company-level information on your Ancillary Services expenses and revenues, and Revenue-Sharing Agreements in connection with your Ancillary Services. First, this subsection directs you to report expenses you incurred in providing Ancillary Services and includes inquiries requiring you to report subsets of those expenses and/or provide narratives in the Word template. Second, this subsection directs you to report revenues earned from providing Ancillary Services and similarly includes questions requiring you to report subsets of those revenues and/or provide narrative responses. Third, this subsection directs you to identify and provide information regarding Revenue-Sharing Agreements relating to your Ancillary Services in the Word template.
(1)
(a) In the next cell, enter “Yes” if you charged Customers more than one Permissible Ancillary Service Charge fee in connection with the same interstate, international, or mixed-jurisdictional transaction during the Reporting Period.
(i) If you answered “Yes,” describe in detail the circumstances relating to those charges in the Word template. Your description shall include, in addition to all other relevant information, a list of the specific transactions for which you charged multiple fees, the fee charged in each transaction, the functions that were covered by each fee, and the total amounts that Customers paid for each fee.
(2)
(a)
(i) In the next cell, identify each Affiliate, if any, that the Company used in providing its Automated Payment Service.
(ii) In the next cell, enter “Yes” if the Company used a Third Party in providing its Automated Payment Service. Otherwise Enter “No.”
(aa) If you entered “Yes,” identify each such Third Party in the next cell.
(bb) Enter the amount the Company paid to each listed Third Party for providing Automated Payment Service for each Year of the Reporting Period.
(iii) In the Word template, describe payment card processing services offered in connection with your Automated Payment Service for each Year of the Reporting Period. Identify whether the payment card processing was performed by the Company, an Affiliate, or a Third Party. If provided by an Affiliate or Third Party, identify the Affiliate or Third Party.
(b)
(i) In the next cell, identify each Affiliate, if any, that the Company used in providing its Live Agent Service.
(ii) In the next cell, enter “Yes” if the Company used a Third Party in providing its Live Agent Service. Otherwise enter “No.”
(aa) If you entered “Yes,” identify each such Third Party in the next cell.
(bb) In the next cell, enter the amount the Company paid each listed Third Party for each Year of the Reporting Period to provide Live Agent Service.
(c)
(i) In the next cell, identify each Affiliate that the Company used in providing its Paper Bill/Statement Service.
(ii) In the next cell, enter “Yes” if the Company used a Third Party in providing its Paper Bill/Statement Service. Otherwise, enter “No.”
(aa) If you entered “Yes,” identify each such Third Party in the next cell.
(bb) In the next cell, enter the amount the Company paid each listed Third Party for each Year of the Reporting Period to provide.
(d)
(i) List each entity that charged the Company for billing services for Single-Call and Related Services during each Year of the Reporting Period. Indicate whether each listed entity is a Third Party.
(ii) Enter the amount the Company paid each Third Party for billing services in connection with Single-Call and Related Services for each Year of the Reporting Period.
(iii) Enter the amount the Company paid a Third Party for billing services in connection with Single-Call and Related Services that the Company passed through to Customers for each Year of the Reporting Period.
(iv) Enter the amount the Company paid to an entity other than a Third Party for billing services in connection with Single-Call and Related Services for each Year of the Reporting Period.
(v) Enter the amount the Company paid to an entity other than a Third
(vi) In the Word template, state whether any entity other than the Company charged Customers Single-Call and Related Services Fees in connection with the Company's ICS-Related Operations during each Year of the Reporting Period. If so, list each such entity, indicate whether each listed entity is a Third Party, and provide the amount of such fees each listed entity charged Customers during each Year of the Reporting Period.
(e)
(i)
(ii) List each entity that charged the Company for providing Third-Party Financial Transaction Services during the Reporting Period in connection with the Company's ICS-Related Operations. Indicate whether each listed entity is a Third Party.
(iii) Enter the amount the Company paid to a Third Party for Third-Party Financial Transaction Services during each Year of the Reporting Period.
(iv) Enter the amount the Company paid to a Third Party for Third-Party Financial Transaction Services that the Company passed through to Customers during each Year of the Reporting Period.
(v) Enter the amount the Company paid to an entity other than a Third Party for Third-Party Financial Transaction Services during each Year of the Reporting Period.
(vi) Enter the amount the Company paid to an entity other than a Third Party for Third-Party Financial Transaction Services that the Company passed through to Customers during each Year of the Reporting Period.
(vii) In the Word template, state whether any entity other than the Company charged Customers for Third-Party Financial Transaction Services in connection with the Company's ICS-Related Operations during each Year of the Reporting Period. If so, list each such entity and provide the amount of such fees each listed entity charged Customers during each Year of the Reporting Period.
(3)
(a)
(i)
(aa) In the Word template, describe the payment card processing services in connection with Automated Payment Service revenue. Identify whether the payment card processing was performed by the Company, an Affiliate, or a Third Party. If payment card processing was performed by an Affiliate or Third Party, identify the Affiliate or Third Party.
(ii)
(aa) If you answered “Yes,” you must provide the information requested below under the “Ancillary Services Revenue-Sharing Agreements” heading in the Word template.
(b)
(i) In the next cell, enter “Yes” if an Affiliate or Third Party charged the Live Agent Fee for each Year during the Reporting Period. Otherwise, enter “No.” If you entered “Yes,” identify each such Affiliate or Third Party in the next cell and provide the amount charged by the Affiliate or Third Party next to the name.
(c)
(d)
(i)
(ii)
(aa) If you answered “Yes,” you must provide the information requested below under the “Ancillary Services Revenue-Sharing Agreements” heading in the Word template.
(e)
(i)
(ab) In the Word template, describe these payment card processing services, including whether they were performed by the Provider, an Affiliate, or a Third Party. If provided by an Affiliate or a Third Party, identify each Affiliate or Third Party. State whether the Company charged Customers payment card processing fees for each Year during the Reporting Period. If so, enter the amount of such fees charged to Customers for each Year during the Reporting Period.
(ii)
(aa) If you answered “Yes,” you must provide the information requested below under the “Ancillary Services Revenue-Sharing Agreements” heading in the Word template.
(4)
(a) For each Revenue-Sharing Agreement identified, provide, at a minimum, the following information:
(i) The parties to the agreement;
(ii) Identify each payor and each payee under the agreement;
(iii) Whether any party to the agreement is an Affiliate or Third Party;
(iv) The Ancillary Service for which revenue is required to be shared under the agreement;
(v) The amount of revenue to be shared under the terms of the agreement;
(vi) The total amount of revenue shared for each Year during the Reporting Period;
(vii) The total amount of revenue shared for each Ancillary Service; and
(viii) The effective and termination dates of the agreement.
(1) In the Word template, describe in detail all types of transactions between the Accounting Entity and its non-Accounting Entity Affiliates.
(2)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
This subsection provides instructions on reporting data and other information where a Provider subcontracts with another entity for the provision of ICS. The primary goal in requiring the submission of these data is to prevent double counting of costs and/or revenues between a Company and other entities when they have a contractual or other arrangement to provide ICS to the same Facility. Further, we also seek to understand the nature of any such arrangements.
(1)
(a) The Provider shall directly assign, attribute, or allocate its investments and expenses based on the cost allocation hierarchies set forth in these instructions to or among:
(i) Inmate Calling Services, Automated Payment Service, Live Agent Service, Paper Bill/Statement Service, Other Ancillary Services, and non-ICS Services;
(ii) Further directly assign, attribute, or allocate the Provider's Inmate Calling Services investments and expenses to or among (i) Provider-supplied facilities; and (ii) Subcontractor-supplied facilities.
(2)
(a) The name of the Provider with the contractual or other agreement with a Facility or contracting authority for the provision of ICS;
(b) The name of the Subcontractor;
(c) The services provided by the Subcontractor under the agreement;
(d) The unique identifier and address for the Facilities at which the Subcontractor provides services under the agreement;
(e) A description of the ICS-Related Operations provided by the Provider and the Subcontractor;
(f) The types of ICS calls billed by the Provider and the Subcontractor; and
(g) A description of any Revenue-Sharing Agreement between the Provider and the Subcontractor.
The previous section directs you to provide general financial data and other information at the Company level. In this section, we direct you to provide financial data and other information at the Facility level. You must submit individual data for each Facility even if that Facility is covered by the same contract as other Facilities. Those data must be specific to the Facility in question and not simply a repeat of data reported for other Facilities covered by the same contract.
Part IV.C.2, above, directs you to provide Company-wide financial information. We now direct you to provide financial information at the Facility level. We begin by providing cost allocation instructions. We then direct you to provide the results of the cost allocation process. We also direct you to provide Annual Total Expenses for ICS at each Facility as well as Facility-specific demand and revenue data. In particular, this subsection seeks Inmate Calling Service demand, revenue, and expense information allocated by Facility in accordance with the cost allocation instructions set forth below.
In Part IV.C.2, above, we direct you to allocate your Company-wide investments and expenses to Inmate Calling Services, among other services, in accordance with certain instructions. We now provide instructions on how you are to allocate the Company-wide investments and expenses allocated to Inmate Calling Services among the Facilities at which the Company provides Calling Services to incarcerated people.
To the extent possible, you must assign or allocate Company-wide investments and expenses for Inmate Calling Services among Facilities using the hierarchy of methods specified below.
(1) First, to the extent possible, directly assign investments used
(2) Second, group shared investments and expenses into shared investment and expense categories based on business function, activity, or task. Group common investments and expenses into common investment and expense categories based on business function, activity, or task.
(a) Any investments and expenses that are not directly assignable to a specific Facility are shared or common investments and expenses.
(b) Shared investments are for assets used exclusively to provide Inmate Calling Services at or for a specific subset of Facilities that are not assignable or attributable to a particular Facility. Shared expenses are expenses incurred solely to provide Inmate Calling Services at or for a specific subset of Facilities that are not assignable or attributable to a specific Facility.
(c) Common investments are for assets not assignable or attributable to a specific Facility or subset of facilities. Common expenses are expenses that are not assignable or attributable to a specific Facility or subset of Facilities.
(3) Third, to the extent possible, directly attribute categories of shared investments and expenses, and categories of common investments and expenses, to particular Facilities based on direct analysis of factors that cause a particular business function, activity, or task—and thus investments or expenses—to increase or decrease.
(4) Fourth, where neither direct assignment nor direct attribution is possible, allocate categories of shared investments and expenses, and categories of common investments and expenses, to particular Facilities based on an indirect, cost-causative link to another investment and expense or another investment or expense category (or group of categories) for which direct assignment or attribution is possible.
(5) Fifth, where none of the methods described above is possible, allocate categories of shared investments and expenses to the particular Facilities that share the investments and expenses in proportion to each Facility's share of the total of all investments or expenses already directly assigned or attributed to these particular Facilities. Allocate categories of common investments and expenses to particular Facilities in proportion to each Facility's share of the total of all investments or expenses already directly assigned or attributed to all Facilities.
(6)
(7)
The sums of the investment and expense amounts assigned to, attributed to, or allocated among Facilities shall equal the total of the Company-wide investment and expense amounts reported for Inmate Calling Services. The sums of the federal and state income taxes calculated separately for each of the Facilities shall equal the Company-wide federal and state income tax amounts reported for Inmate Calling Services. Fully document, explain, and justify all cost assignments, attributions, and allocations in the Word template.
Report the results of your cost assignments, attributions, and allocations in the Excel template.
(1)
(a) Gross Investment;
(b) Accumulated depreciation;
(c) Accumulated amortization;
(d) Net Investment;
(e) Accumulated deferred federal income taxes;
(f) Accumulated deferred state income taxes;
(g) Customer prepayments or deposits;
(h) Cash Working Capital; and
(i) Net Capital Stock.
(2)
(a) Depreciation;
(b) Amortization;
(c) Weighted Average Cost of Capital;
(d) Return;
(e) Interest other than interest paid on customer prepayments or deposits;
(f) Interest paid on customer prepayments or deposits;
(g) Other income tax-related adjustments;
(h) Federal taxable income;
(i) Federal income tax rate;
(j) Federal income tax gross-up factor;
(k) Federal income tax;
(l) Federal income tax not deductible for state income tax purposes;
(m) State taxable income;
(n) State income tax rate;
(o) State income tax gross-up factor; and
(p) State income tax.
(3)
(a) Maintenance, repair, and engineering of site plant, equipment, and facilities;
(b) Origination, switching, and transporting of Interstate, International and Intrastate Communication and termination of Interstate and Intrastate Communication;
(c) Termination of International Communication;
(d) Field service;
(e) Network operations;
(f) Call center;
(g) Data center;
(h) Security Services relating to the Company's ICS-Related Operations;
(i) Billing, collection, client management, and customer care;
(j) Sales and marketing;
(k) General and administrative;
(l) Other overhead;
(m) Taxes other than income taxes;
(n) Transactions related to mergers and acquisitions; and
(o) Bad debt.
Report the separate Facility-specific Annual Total Expenses for Inmate Calling Services for each Facility at which you provided Calling Services to incarcerated people. Exclude reported interest expense other than interest paid on customer prepayments or deposits from Annual Total Expenses. The allowance for interest expense other than interest paid on customer prepayments or deposits is included in the Return component of the Annual Total Expenses calculation. Include reported interest paid on customer prepayments or deposits in Annual Total Expenses. Exclude expense reported for termination of International Communication from Annual Total Expenses.
(1)
(a) Total Billed Calls;
(b) Billed Calls separately for (i) Interstate Communication, (ii) International Communication, and (iii) Intrastate Communication;
(c) Total Unbilled Calls;
(d) Total Billed and Unbilled Calls;
(e) Total Billed Minutes;
(f) Billed Minutes separately for (i) Interstate Communication, (ii) International Communication, and (iii) Intrastate Communication;
(g) Total Unbilled Minutes;
(h) Total Billed and Unbilled Minutes;
(i) Average Daily Population;
(aa) If you do not know a Facility's Average Daily Population, so indicate and provide your best estimate of that Average Daily Population. Explain the basis for this estimate in the Word template.
(j) Total number of ICS accounts opened;
(k) Total number of ICS accounts closed;
(l) Total Admissions;
(m) Total Releases;
(n) Weekly Turnover Rate;
(o) Number of Incarcerated Person Telephones Installed; and
(p) Number of Incarcerated Person Kiosks Installed.
(2)
(3)
(a) Total Billed Revenues;
(b) Billed Revenues separately for (i) Interstate Communication, (ii) International Communication, and (iii) Intrastate Communication;
(4)
The following information requires you to report various Facility-level data in the Excel template.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
This subsection directs you to report Facility-specific data on Site Commissions. You must fully allocate all reported Site Commissions during the Reporting Period among the Facilities associated with each Site Commission payment.
(1)
(a) For each Year of the Reporting Period, enter the percentage of the total Site Commissions paid by the Company that was related to the Facility and that was attributable to the Company's ICS-Related Operations.
(b) List the non-ICS Products and Services that the Company provided at the Facility during each year of the Reporting Period.
(c) In the Word template, identify for each Year of the Reporting Period any Site Commissions paid by the Company that related to any Facility and that
(d) In the Word template, list for each Year of the Reporting Period each entity to which you paid a Site Commission. Provide the name of the Facility for which that entity is responsible and the amount paid to that entity without regard to whether the Site Commission was Legally Mandated, Contractually Prescribed, Fixed, Variable, Monetary, or In-Kind.
(2)
(a)
(b)
(c)
(d)
(i)
(aa)
(ab) If the Legally Mandated, Fixed, Monetary Site Commission was imposed at the contract level (
(ac) In the Word template, describe the methodology used to allocate the Legally Mandated, Fixed, Monetary Site Commission payments among Facilities covered by the contract.
(ad)
(aaa)
(ii)
(aa)
(e)
(i)
(ii) In the Word template, describe these in-kind payments in detail. Specifically describe each Security Service provided at the Facility that you classify as an In-Kind Site Commission payment. Also specifically describe any other payment, gift, exchange of services or goods, fee, technology allowance, or product provided the Facility that you classify as an In-Kind Site Commission payment.
(iii)
(aa)
(ab) If the Legally Mandated, Fixed, In-Kind Site Commission was imposed at the contract level (
(ac) In the Word template, describe the methodology used to allocate the Legally Mandated, Fixed, In-Kind Site Commission payments among Facilities covered by the contract.
(ad)
(aaa)
(iv)
(aa)
(3)
(a)
(b)
(i)
(ii)
(aa)
(ab) If the Contractually Prescribed, Fixed, Monetary Site Commission was imposed at the contract level (
(ac) In the Word template, describe the methodology used to allocate the Contractually Prescribed, Fixed, Monetary Site Commission payments among Facilities covered by the contract.
(ad)
(aaa)
(iii)
(aa)
(c)
(i)
(ii) In the Word template, describe these in-kind payments in detail. Specifically describe each Security Service provided at the Facility that you classify as an In-Kind Site Commission payment. Also specifically describe any other payment, gift, exchange of services or goods, fee, technology allowance, or product provided the Facility that you classify as an In-Kind Site Commission payment.
(iii)
(aa)
(ab) If the Contractually Prescribed, Fixed, In-Kind Site Commission was imposed at the contract level (
(ac) In the Word template, describe the methodology used to allocate the Contractually Prescribed, Fixed, In-Kind Site Commission payments among Facilities.
(ad)
(aaa)
(iv)
(aa)
(4)
Reporting in response to the following questions (1) through (4) must be exclusive of the data reported in connection with Site Commissions to prevent double-counting.
(1) On the Excel template, fully allocate and report the total dollar amount of costs the Company incurred to provide the following categories of services at each Facility during each Year of the Reporting Period.
(a) Law enforcement support services
(i) In the Word template, for each Facility and for each Year of the Reporting Period, identify by name and describe each service you classify as a law enforcement support service, including a description of the specific tasks and functions covered by this service and whether you routinely offer this service in connection with ICS.
(b) Call security services
(i) In the Word template, for each Facility and for each Year of the Reporting Period, identify by name and describe each service you classify as a call security service, including a description of the specific tasks and functions covered by this service and whether you routinely offer this service in connection with ICS.
(c) Call recording services
(i) In the Word template, for each Facility and for each Year of the Reporting Period, identify by name and describe each service you classify as a call recording service, including a description of the specific tasks and functions covered by this service and whether you routinely offer this service in connection with ICS.
(d) Call monitoring services
(i) In the Word template, for each Facility and for each Year of the Reporting Period, identify by name and describe each service you classify as a call monitoring service, including a description of the specific tasks and functions covered by this service whether you routinely offer this service in connection with ICS.
(e) Voice biometrics services
(i) In the Word template, for each Facility and for each Year of the Reporting Period, identify by name and describe each service you classify as a voice biometric service, including a description of the specific tasks and functions covered by this service and whether you routinely offer this service in connection with ICS.
(f) Other Security Services
(i) In the Word template, for each Facility and for each Year of the Reporting Period, identify by name and describe each Security Service that is not included in one of the foregoing subcategories, including a description of the specific tasks and functions covered by each service and whether you routinely offer each service in connection with ICS.
(2) In the Word template, specifically describe each Security Service you provided at the Facility that you do not classify as a Site Commission and that is
(3) In the Word template, specifically describe any other payment, gift, exchange of goods or services, fee, technology allowance, or product provided for security purposes at the Facility that you do not classify as a Site Commission payment.
(4) In the Word template, fully describe, document, explain, and justify the allocation methodology you use to allocate the costs of your Security Services between ICS and non-ICS operations at each Facility during each Year of the Reporting Period in situations where Security Services offered by you also shared elements or overlapped with your non-ICS operations at each Facility.
(1)
(2)
(3)
(4)
(5)
(6)
(a) In the Word template, describe these payment card processing functions performed at each Facility, including whether they were performed by the Provider, an Affiliate, or a Third Party. If such functions were performed by an Affiliate or Third Party, identify the Affiliate or Third Party.
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
(25)
(26)
(27)
(a) In the Word template, describe the payment card processing services in connection with revenue reported for Third-Party Financial Transaction Fees, including whether they were performed by the Provider, an Affiliate, or a Third Party. If such services were provided by an Affiliate or a Third Party, identify the Affiliate or Third Party.
(28)
(29)
(30)
(31)
(32)
(33)
(34)
Each Provider of Inmate Calling Services must submit a signed certification form as part of its Mandatory Data Collection response. The Chief Executive Officer (CEO), Chief Financial Officer (CFO), or other senior executive of the Provider must complete the form and certify that, based the executive's own reasonable inquiry, that all statements and information contained in the Provider's Mandatory Data Collection response are true, accurate, and complete. The Certification Form is Appendix C to these instructions.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
Securities and Exchange Commission.
Proposed rule.
The Securities and Exchange Commission (“Commission”) is proposing rules to enhance and standardize disclosures regarding cybersecurity risk management, strategy, governance, and cybersecurity incident reporting by public companies that are subject to the reporting requirements of the Securities Exchange Act of 1934. Specifically, we are proposing amendments to require current reporting about material cybersecurity incidents. We are also proposing to require periodic disclosures about a registrant's policies and procedures to identify and manage cybersecurity risks, management's role in implementing cybersecurity policies and procedures, and the board of directors' cybersecurity expertise, if any, and its oversight of cybersecurity risk. Additionally, the proposed rules would require registrants to provide updates about previously reported cybersecurity incidents in their periodic reports. Further, the proposed rules would require the cybersecurity disclosures to be presented in Inline eXtensible Business Reporting Language (“Inline XBRL”). The proposed amendments are intended to better inform investors about a registrant's risk management, strategy, and governance and to provide timely notification of material cybersecurity incidents.
Comments should be received on or before May 9, 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 to Vanessa A. Countryman, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
Studies, memoranda, or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on our website. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at
Ian Greber-Raines, Special Counsel, Office of Rulemaking, at (202) 551-3460, Division of Corporation Finance; and, with respect to the application of the proposal to business development companies, David Joire, Senior Special Counsel, at (202) 551-6825 or
We are proposing to amend or add the following rules and forms:
Public company investors and other participants in the capital markets depend on companies' use of secure and reliable information systems to conduct their businesses. A significant and increasing amount of the world's economic activities occurs through digital technology and electronic communications.
With an increase in the prevalence of cybersecurity incidents, there is an increased risk of the effect of cybersecurity incidents on the economy and registrants. Large scale cybersecurity attacks can have systemic effects on the economy as a whole, including serious effects on critical infrastructure and national security.
The cost to companies and their investors of cybersecurity incidents is rising and doing so at an increasing rate.
• Costs due to business interruption, decreases in production, and delays in product launches;
• Payments to meet ransom and other extortion demands;
• Remediation costs, such as liability for stolen assets or information, repairs of system damage, and incentives to customers or business partners in an effort to maintain relationships after an attack;
• Increased cybersecurity protection costs, which may include increased insurance premiums and the costs of making organizational changes, deploying additional personnel and protection technologies, training employees, and engaging third-party experts and consultants;
• Lost revenues resulting from intellectual property theft and the unauthorized use of proprietary information or the failure to retain or attract customers following an attack;
• Litigation and legal risks, including regulatory actions by state and federal governmental authorities and non-U.S. authorities;
• Harm to employees and customers, violation of privacy laws, and reputational damage that adversely affects customer or investor confidence; and
• Damage to the company's competitiveness, stock price, and long-term shareholder value.
As indicated by the examples enumerated above, the potential costs and damage that can stem from a material cybersecurity incident are extensive. Many smaller companies have been targets of cybersecurity attacks so severe that the companies have gone out of business as a result.
Recent research suggests that cybersecurity is among the most critical governance-related issues for investors, especially U.S. investors.
We believe investors would benefit from more timely and consistent disclosure about material cybersecurity incidents, because of the potential impact that such incidents can have on the financial performance or position of a registrant. We also believe that investors would benefit from greater availability and comparability of disclosure by public companies across industries regarding their cybersecurity risk management, strategy, and governance practices in order to better assess whether and how companies are managing cybersecurity risks. The proposal reflects these policy goals.
Specifically, in this release, we are proposing to amend Form 8-K to require current disclosure of material cybersecurity incidents. We are also proposing to add new Item 106 of Regulation S-K that would require a registrant to: (1) Provide updated disclosure in periodic reports about previously reported cybersecurity incidents; (2) describe its policies and procedures, if any, for the identification and management of risks from cybersecurity threats, including whether the registrant considers cybersecurity risks as part of its business strategy, financial planning, and capital allocation; and (3) require disclosure about the board's oversight of cybersecurity risk, management's role in assessing and managing such risk, management's cybersecurity expertise, and management's role in implementing the registrant's cybersecurity policies, procedures, and strategies. We also are proposing to amend Item 407 of Regulation S-K to require disclosure of whether any member of the registrant's board has expertise in cybersecurity, and if so, the nature of such expertise.
Although there are no disclosure requirements in Regulation S-K or S-X that explicitly refer to cybersecurity risks or incidents, in light of the increasing significance of cybersecurity incidents, over the past decade the Commission and staff have issued interpretive guidance concerning the application of existing disclosure and other requirements under the federal securities laws to cybersecurity risks and incidents. In 2011, the Division of Corporation Finance issued interpretive guidance (“2011 Staff Guidance”), providing the Division's views concerning operating companies' disclosure obligations relating to cybersecurity risks and incidents.
In 2018, recognizing the “the frequency, magnitude and cost of cybersecurity incidents,” and the need for investors to be informed about material cybersecurity risks and incidents in a timely manner, the Commission issued interpretive guidance (“2018 Interpretive Release”) to assist operating companies in determining when they may be required to disclose information regarding cybersecurity risks and incidents under existing disclosure rules.
Specifically, the 2018 Interpretive Release stated that companies should consider the materiality of cybersecurity risks and incidents when preparing the disclosure required in registration statements under the Securities Act and Exchange Act, as well as in periodic and current reports under the Exchange Act. The 2018 Interpretive Release identified the following existing provisions in Regulations S-K and S-X that may require disclosure about cybersecurity risks, governance, and incidents:
• Item 105 of Regulation S-K (Risk Factors)
• Item 303 of Regulation S-K (Management's Discussion and Analysis of Financial Condition and Results of Operations)
• Item 101 of Regulation S-K (Description of Business)
• Item 103 of Regulation S-K (Legal Proceedings)—the 2018 Interpretive Release explains that this item may require disclosure about material pending legal proceedings that relate to cybersecurity issues.
• Item 407 of Regulation S-K (Corporate Governance)
• Regulation S-X Financial Disclosures—the 2018 Interpretive Release notes the Commission's expectation that a company would design its financial reporting and control systems to provide reasonable assurance that information about the range and magnitude of the financial impacts of a cybersecurity incident would be incorporated into its financial statements on a timely basis as that information becomes available.
The 2018 Interpretive Release also addresses the importance of a company's adoption of disclosure controls and procedures that cause the company to appropriately record, process, summarize, and report to investors material information related to cybersecurity risks and incidents.
The majority of registrants reporting material cybersecurity incidents do so in a Form 8-K, press release, or periodic report. Although we are unable to determine the number of material cybersecurity incidents that either are not being disclosed or not being disclosed in a timely manner, the staff has observed certain cybersecurity incidents that were reported in the media but that were not disclosed in a registrant's filings. Further, the staff in the Division of Corporation Finance's review of Form 8-K filings, as well as Form 10-K and Form 20-F filings, has shown that the nature of the cybersecurity incident disclosure varies widely. In these filings, companies provide different levels of specificity regarding the cause, scope, impact, and materiality of cybersecurity incidents. For example, some companies provide a materiality analysis, disclose the estimated costs of an incident, discuss their engagement of cybersecurity professionals, and/or explain the remedial steps they have taken or are taking in response to a cybersecurity incident, while others do not provide such disclosure or provide much less detail in their disclosure on these topics.
The staff has also observed that, while the majority of registrants that are disclosing cybersecurity risks appear to be providing such disclosures in the risk factor section of their annual reports on Form 10-K, the disclosures are sometimes blended with other unrelated disclosures, which makes it more difficult for investors to locate, interpret, and analyze the information provided. Further, the staff has observed a divergence in these disclosures by industry and that, smaller reporting companies generally provide less cybersecurity disclosure as compared to larger registrants. One report noted a disconnect in which the industries experiencing the most high profile cybersecurity incidents provided disclosure with the “least amount of information.”
Registrants' disclosures of both material cybersecurity incidents and cybersecurity risk management and governance have improved since the issuance of the 2011 Staff Guidance and the 2018 Interpretive Release.
We welcome feedback and encourage interested parties to submit comments on any or all aspects of the proposed rule amendments. When commenting, it would be most helpful if you include the reasoning behind your position or recommendation.
Cybersecurity risks and incidents can impact the financial performance or position of a company. Consistent, comparable, and decision-useful disclosures regarding a registrant's cybersecurity risk management, strategy, and governance practices, as well as a registrant's response to material cybersecurity incidents, would allow investors to understand such risks and incidents, evaluate a registrant's risk management and governance practices regarding those risks, and better inform their investment and voting decisions.
The proposed rules would require current and periodic reporting of
Specifically, we are proposing to:
• Amend Form 8-K to add Item 1.05 to require registrants to disclose information about a cybersecurity incident within four business days after the registrant determines that it has experienced a material cybersecurity incident;
• Amend Forms 10-Q and 10-K to require registrants to provide updated disclosure relating to previously disclosed cybersecurity incidents, as specified in proposed Item 106(d) of Regulation S-K. We also propose to amend these forms to require disclosure, to the extent known to management, when a series of previously undisclosed individually immaterial cybersecurity incidents has become material in the aggregate.
• Amend Form 10-K to require disclosure specified in proposed Item 106 regarding:
○ A registrant's policies and procedures, if any, for identifying and managing cybersecurity risks;
○ A registrant's cybersecurity governance, including the board of directors' oversight role regarding cybersecurity risks;
○ Management's role, and relevant expertise, in assessing and managing cybersecurity related risks and implementing related policies, procedures, and strategies.
• Amend Item 407 of Regulation S-K to require disclosure about if any member of the registrant's board of directors has cybersecurity expertise.
• Amend Form 20-F to require foreign private issuers (“FPIs”)
• Amend Form 6-K to add “cybersecurity incidents” as a reporting topic; and
• Require that the proposed disclosures be provided in Inline XBRL.
There is growing concern that material cybersecurity incidents
Specifically, we propose to amend Form 8-K by adding new Item 1.05 that would require a registrant to disclose the following information about a material cybersecurity incident, to the extent the information is known at the time of the Form 8-K filing:
• When the incident was discovered and whether it is ongoing;
• A brief description of the nature and scope of the incident;
• Whether any data was stolen, altered, accessed, or used for any other unauthorized purpose;
• The effect of the incident on the registrant's operations; and
• Whether the registrant has remediated or is currently remediating the incident.
We believe that this information would provide timely and relevant disclosure to investors and other market participants (such as financial analysts, investment advisers, and portfolio managers) and enable them to assess the possible effects of a material cybersecurity incident on the registrant, including any long-term and short-term financial effects or operational effects. While registrants should provide disclosure responsive to the enumerated items to the extent known at the time of filing of the Form 8-K, we would not expect a registrant to publicly disclose specific, technical information about its planned response to the incident or its cybersecurity systems, related networks and devices, or potential system vulnerabilities in such detail as would impede the registrant's response or remediation of the incident.
We believe that the proposed requirement to file an Item 1.05 Form 8-K within four business days after the registrant determines that it has experienced a material cybersecurity incident would significantly improve the timeliness of cybersecurity incident disclosures, as well as provide investors with more standardized and comparable disclosures.
We are proposing that the trigger for an Item 1.05 Form 8-K is the date on which a registrant determines that a cybersecurity incident it has experienced is material, rather than the date of discovery of the incident, so as to focus the Form 8-K disclosure on
What constitutes “materiality” for purposes of the proposed cybersecurity incidents disclosure would be consistent with that set out in the numerous cases addressing materiality in the securities laws, including:
A materiality analysis is not a mechanical exercise, nor should it be based solely on a quantitative analysis of a cybersecurity incident. Rather, registrants would need to thoroughly and objectively evaluate the total mix of information, taking into consideration all relevant facts and circumstances surrounding the cybersecurity incident, including both quantitative and qualitative factors, to determine whether the incident is material. Even if the probability of an adverse consequence is relatively low, if the magnitude of the loss or liability is high, the incident may still be material; materiality “depends on the significance the reasonable investor would place on” the information.
The following is a non-exclusive list of examples of cybersecurity incidents
• An unauthorized incident that has compromised the confidentiality, integrity, or availability of an information asset (data, system, or network); or violated the registrant's security policies or procedures. Incidents may stem from the accidental exposure of data or from a deliberate attack to steal or alter data;
• An unauthorized incident that caused degradation, interruption, loss of control, damage to, or loss of operational technology systems;
• An incident in which an unauthorized party accessed, or a party exceeded authorized access, and altered, or has stolen sensitive business information, personally identifiable information, intellectual property, or information that has resulted, or may result, in a loss or liability for the registrant;
• An incident in which a malicious actor has offered to sell or has threatened to publicly disclose sensitive company data; or
• An incident in which a malicious actor has demanded payment to restore company data that was stolen or altered.
Proposed Item 1.05 would not provide for a reporting delay when there is an ongoing internal or external investigation related to the cybersecurity incident. As the Commission stated in the 2018 Interpretive Release, while an ongoing investigation might affect the specifics in the registrant's disclosure, “an ongoing internal or external investigation—which often can be lengthy—would not on its own provide a basis for avoiding disclosures of a material cybersecurity incident.”
Many states have laws that allow companies to delay providing public notice about a data breach incident or notifying certain constituencies of such an incident if law enforcement determines that notification will impede a civil or criminal investigation. A registrant may have obligations to report incidents at the state or federal level (to customers, consumer credit reporting entities, state or federal regulators and law enforcement agencies, etc.); those obligations are distinct from its obligations to disclose material information to its shareholders under the federal securities laws. To the extent that proposed Item 1.05 of Form 8-K would require disclosure in a situation in which a state law delay provision
FPIs are not required to file current reports on Form 8-K.
We are proposing to amend General Instruction I.A.3.(b) of Form S-3 and General Instruction I.A.2 of Form SF-3 to provide that an untimely filing on Form 8-K regarding new Item 1.05 would not result in loss of Form S-3 or Form SF-3 eligibility. Under our existing rules, the untimely filing on Form 8-K of certain specified items does not result in loss of Form S-3 or Form SF-3 eligibility, so long as Form 8-K reporting is current at the time the Form S-3 or SF-3 is filed. In the past, when we have adopted new disclosure requirements that differed from the traditional periodic reporting obligations of companies, we have acknowledged concerns about the potentially harsh consequences of the loss of Form S-3 or Form SF-3 eligibility, and addressed such concerns by specifying that untimely filing of Forms 8-K relating to certain topics would not result in the loss of Form S-3 or Form SF-3 eligibility.
We are also proposing to amend Rules 13a-11(c) and 15d-11(c) under the Exchange Act to include new Item 1.05 in the list of Form 8-K items eligible for a limited safe harbor from liability under Section 10(b) or Rule 10b-5 under the Exchange Act.
1. Would investors benefit from current reporting about material cybersecurity incidents on Form 8-K? Does the proposed Form 8-K disclosure requirement appropriately balance the informational needs of investors and the reporting burdens on registrants?
2. Would proposed Item 1.05 require an appropriate level of disclosure about a material cybersecurity incident? Would the proposed disclosures allow investors to understand the nature of the incident and its potential impact on the registrant, and make an informed investment decision? Should we modify or eliminate any of the specified disclosure items in proposed Item 1.05? Is there any additional information about a material cybersecurity incident that Item 1.05 should require?
3. Could any of the proposed Item 1.05 disclosures or the proposed timing of the disclosures have the unintentional effect of putting registrants at additional risk of future cybersecurity incidents? If so, how could we modify the proposal to avoid this effect? For example, should registrants instead provide some of the disclosures in proposed Item 1.05 in the registrant's next periodic report? If so, which disclosures?
4. We are proposing to require registrants to file an Item 1.05 Form 8-K within four business days after the registrant determines that it has experienced a material cybersecurity incident. Would the proposed four-business day filing deadline provide sufficient time for registrants to prepare the disclosures that would be required under proposed Item 1.05? Should we modify the timeframe in which a registrant must file a Form 8-K under proposed Item 1.05? If so, what timeframe would be more appropriate for making these disclosures?
5. Should there be a different triggering event for the Item 1.05 disclosure, such as the registrant's discovery that it has experienced a cybersecurity incident, even if the registrant has not yet been able to determine the materiality of the incident? If so, which information should be disclosed in Form 8-K based on a revised triggering event? Should we instead require disclosure only if the expected costs arising from a cybersecurity incident exceed a certain quantifiable threshold,
6. To what extent, if any, would the proposed Form 8-K incident reporting obligation create conflicts for a registrant with respect to other obligations of the registrant under federal or state law? How would any such conflicting obligations arise, and what mechanisms could the Commission use to ensure that registrants can comply with other laws and regulations while providing these
7. Should any rule provide that the Commission shall allow registrants to delay reporting of a cybersecurity incident where the Attorney General requests such a delay from the Commission based on the Attorney General's written determination that the delay is in the interest of national security?
8. We are proposing to include an instruction that “a registrant shall make a materiality determination regarding a cybersecurity incident as soon as reasonably practicable after discovery of the incident.” Is this instruction sufficient to mitigate the risk of a registrant delaying a materiality determination? Should we consider further guidance regarding the timing of a materiality determination? Should we, for example, suggest examples of timeframes that would (or would not), in most circumstances, be considered prompt?
9. Should certain registrants that would be within the scope of the proposed requirements, but that are subject to other cybersecurity-related regulations, or that would be included in the scope of the Commission's recently-proposed cybersecurity rules
10. As described further below, we are proposing to define cybersecurity incident to include an unauthorized occurrence on or through a registrant's “information systems,” which is proposed to include “information resources owned or used by the registrant.” Would registrants be reasonably able to obtain information to make a materiality determination about cybersecurity incidents affecting information resources that are used but not owned by them? Would a safe harbor for information about cybersecurity incidents affecting information resources that are used but not owned by a registrant be appropriate? If so, why, and what would be the appropriate scope of a safe harbor? What alternative disclosure requirements would provide investors with information about cybersecurity incidents and risks that affect registrants via information systems owned by third parties?
11. We are proposing that registrants be required to file rather than permitted to furnish an Item 1.05 Form 8-K. Should we instead permit registrants to furnish an Item 1.05 Form 8-K, such that the Form 8-K would not be subject to liability under Section 18 of the Exchange Act unless the registrant specifically states that the information is to be considered “filed” or incorporates it by reference into a filing under the Securities Act or Exchange Act?
12. We note above a non-exclusive list of examples that would merit disclosure under Item 1.05 of Form 8-K covers some, but not all, types of material cybersecurity incidents. Are there additional examples we should address? Should we include a non-exclusive list of examples in Item 1.05 of Form 8-K?
13. Should we include Item 1.05 in the Exchange Act Rules 13a-11 and 15d-11 safe harbors from public and private claims under Exchange Act Section 10(b) and Rule 10b-5 for failure to timely file a Form 8-K, as proposed?
14. Should we include Item 1.05, as proposed, in the list of Form 8-K items where failure to timely file a Form 8-K will not result in the loss of a registrant's eligibility to file a registration statement on Form S-3 and Form SF-3?
Proposed Item 106(d)(1) of Regulation S-K would require registrants to disclose any material changes, additions, or updates to information required to be disclosed pursuant to Item 1.05 of Form 8-K in the registrant's quarterly report filed with the Commission on Form 10-Q or annual report filed with the Commission on Form 10-K for the period (the registrant's fourth fiscal quarter in the case of an annual report) in which the material change, addition, or update occurred.
We are proposing this requirement to balance the need for prompt and timely disclosure regarding material cybersecurity incidents with the fact that a registrant may not have complete information about a material cybersecurity incident at the time it determines the incident to be material. Proposed Item 106(d)(1) provides a means for investors to receive regular updates regarding the previously reported incident when and for so long as there are material changes, additions, or updates during a given reporting period. For example, after filing the initial Form 8-K disclosure, the registrant may become aware of additional material information about the scope of the incident and whether any data was stolen or altered; the proposed Item 106(d)(1) disclosure requirements would allow investors to stay informed of such developments.
The registrant also may be able to provide information about the effect of the previously reported cybersecurity incident on its operations as well as a description of remedial steps it has taken, or plans to take, in response to the incident that was not available at the time of the initial Form 8-K filing.
• Any material impact of the incident on the registrant's operations and financial condition;
• Any potential material future impacts on the registrant's operations and financial condition;
• Whether the registrant has remediated or is currently remediating the incident; and
• Any changes in the registrant's policies and procedures as a result of the cybersecurity incident, and how the incident may have informed such changes.
Proposed Item 106(d)(2) would require disclosure when a series of previously undisclosed individually immaterial cybersecurity incidents become material in the aggregate. Thus, registrants would need to analyze related cybersecurity incidents for materiality, both individually and in the aggregate. If such incidents become material in the aggregate, registrants would need to disclose: When the incidents were discovered and whether they are ongoing; a brief description of the nature and scope of such incidents; whether any data was stolen or altered; the impact of such incidents on the registrant's operations and the registrant's actions; and whether the registrant has remediated or is currently remediating the incidents.
While such incidents conceptually could take a variety of forms, an example would be where one malicious actor engages in a number of smaller but continuous cyber-attacks related in time and form against the same company and collectively, they are either quantitatively or qualitatively material, or both. Such incidents would need to be disclosed in the periodic report for the period in which a registrant has made a determination that they are material in the aggregate.
15. Should we require registrants to disclose any material changes or updates to information that would be disclosed pursuant to proposed Item 1.05 of Form 8-K in the registrant's quarterly or annual report, as proposed? Are there instances, other than to correct inaccurate or materially misleading prior disclosures, when a registrant should be required to update its report on Form 8-K or file another Form 8-K instead of providing disclosure of material changes, additions, or updates in a subsequent Form 10-Q or Form 10-K?
16. Should we require a registrant to provide disclosure on Form 10-Q or Form 10-K when a series of previously undisclosed and individually immaterial cybersecurity incidents becomes material in the aggregate, as proposed? Alternatively, should we require a registrant to provide disclosure in Form 8-K, rather than in a periodic report, as proposed, when a series of previously undisclosed and individually immaterial cybersecurity incidents becomes material in the aggregate?
Companies typically address significant risks to their businesses by developing risk management systems, which may include policies and procedures for identifying, assessing, and managing the risks. These policies and procedures may then be subject to oversight by a company's management and board.
We are proposing Item 106(b) of Regulation S-K to require registrants to provide more consistent and informative disclosure regarding their cybersecurity risk management and strategy. We believe that disclosure of the relevant policies and procedures, to the extent a registrant has established any, would benefit investors by providing greater transparency as to the registrant's strategies and actions to manage cybersecurity risks. For example, proposed disclosure about whether the registrant has a cybersecurity risk assessment program and undertakes activities designed to prevent, detect, and minimize effects of cybersecurity incidents can improve an investor's understanding of the registrant's cybersecurity risk profile. Given that a significant number of cybersecurity incidents pertain to third party service providers, the proposed rules would require disclosure concerning a registrant's selection and oversight of third-party entities as well.
Additionally, cybersecurity risks may have an impact on a registrant's business strategy, financial outlook, or financial planning. Across industries, companies increasingly rely on information technology, collection of data, and use of digital payments as critical components of their business model and strategy. Their exposure to cybersecurity risks and previous cybersecurity incidents may affect these critical components, informing changes in their business model, financial condition, financial planning, and allocation of capital. For example, a company with a business model that relies highly on collecting and safeguarding sensitive and personally identifiable information from its customers may consider raising additional capital to invest in enhanced cybersecurity protection, improvements in its information security infrastructure, or employee cybersecurity training. Another company may examine the risks and decide that its business model should be adapted to minimize its collection of sensitive and personally identifiable information in order to reduce its risk exposure. These strategic decisions have implications for the company's financial planning and future financial performance. Disclosure about the impact of cybersecurity risks on business strategy would enable investors to assess whether companies will become more resilient or conversely, more vulnerable to cybersecurity risks in the future.
We also propose requiring disclosure of whether cybersecurity related risk and previous incidents have affected or are reasonably likely to affect the registrant's results of operations or financial condition. Investors would likely want to understand the financial impacts of cybersecurity risks and previous cybersecurity incidents in order to understand how these risks and incidents affect the company's financial performance or position, and thus the return on their investment. For example, a company that has previously experienced a cybersecurity incident may plan to provide compensation to consumers or it may anticipate regulatory fines or legal judgments as a result of the incident. These financial impacts would help investors understand the degree to which cybersecurity risks and incidents could affect the company's financial performance or position.
Proposed Item 106(b) would therefore require registrants to disclose its
• The registrant has a cybersecurity risk assessment program and if so, provide a description of such program;
• The registrant engages assessors, consultants, auditors, or other third parties in connection with any cybersecurity risk assessment program;
• The registrant has policies and procedures to oversee and identify the cybersecurity risks associated with its use of any third-party service provider (including, but not limited to, those providers that have access to the registrant's customer and employee data), including whether and how cybersecurity considerations affect the selection and oversight of these providers and contractual and other mechanisms the company uses to mitigate cybersecurity risks related to these providers;
• The registrant undertakes activities to prevent, detect, and minimize effects of cybersecurity incidents;
• The registrant has business continuity, contingency, and recovery plans in the event of a cybersecurity incident;
• Previous cybersecurity incidents have informed changes in the registrant's governance, policies and procedures, or technologies;
• Cybersecurity related risk and incidents have affected or are reasonably likely to affect the registrant's results of operations or financial condition and if so, how; and
• Cybersecurity risks are considered as part of the registrant's business strategy, financial planning, and capital allocation and if so, how.
Disclosure regarding board oversight of a registrant's cybersecurity risk and the inclusion or exclusion of management from the oversight of cybersecurity risks and the implementation of related policies, procedures, and strategies impacts an investor's ability to understand how a registrant prepares for, prevents, or responds to cybersecurity incidents.
Specifically, as it pertains to the board's oversight of cybersecurity risk, disclosure required by proposed Item 106(c)(1) would include a discussion, as applicable, of the following:
• Whether the entire board, specific board members or a board committee is responsible for the oversight of cybersecurity risks;
• The processes by which the board is informed about cybersecurity risks, and the frequency of its discussions on this topic; and
• Whether and how the board or board committee considers cybersecurity risks as part of its business strategy, risk management, and financial oversight.
This proposed disclosure about the board's oversight would inform investors about the role of the board in cybersecurity risk management, which may help inform their investment and voting decisions. Proposed Item 106(c)(1) would also reinforce the 2018 Interpretive Release, which states that the board's role in overseeing cybersecurity risks should be disclosed if “cybersecurity risks are material to a company's business” and that such disclosures should address how a board “engages with management on cybersecurity issues” and “discharg[es] its [cybersecurity] risk oversight responsibility.”
Proposed Item 106(c)(2) would require a description of management's role in assessing and managing cybersecurity-related risks and in implementing the registrant's cybersecurity policies, procedures, and strategies. This description would include, but not be limited to, the following information:
• Whether certain management positions or committees are responsible for measuring and managing cybersecurity risk, specifically the prevention, mitigation, detection, and remediation of cybersecurity incidents, and the relevant expertise of such persons or members;
• Whether the registrant has a designated chief information security officer,
• The processes by which such persons or committees are informed about and monitor the prevention, mitigation, detection, and remediation of cybersecurity incidents; and
• Whether and how frequently such persons or committees report to the board of directors or a committee of the board of directors on cybersecurity risk.
This proposed disclosure of how a registrant's management assesses and implements policies, procedures, and strategies to mitigate cybersecurity risks would be of importance to investors both as they understand how registrants are planning for cybersecurity risks and as they make decisions as to how best to allocate their capital.
Proposed Item 106(a) defines the terms “cybersecurity incident,” “cybersecurity threat,” and “information systems,” as used in proposed Item 106 and proposed Form 8-K Item 1.05 as follows:
•
•
•
What constitutes a “cybersecurity incident” for purposes of our proposal should be construed broadly and may result from any one or more of the following: An accidental exposure of data, a deliberate action or activity to gain unauthorized access to systems or to steal or alter data, or other system compromises or data breaches.
17. Should we adopt Item 106(b) and (c) as proposed? Are there other aspects of a registrant's cybersecurity policies and procedures or governance that should be required to be disclosed under Item 106, to the extent that a registrant has any policies and procedures or governance? Conversely, should we exclude any of the proposed Item 106 disclosure requirements?
18. Are the proposed definitions of the terms “cybersecurity incident,” “cybersecurity threat,” and “information systems,” in Item 106(a) appropriate or should they be revised? Are there other terms used in the proposed amendments that we should define?
19. The proposed rule does not define “cybersecurity.” We could define the term to mean, for example: “any action, step, or measure to detect, prevent, deter, mitigate, or address any cybersecurity threat or any potential cybersecurity threat.” Would defining “cybersecurity” in proposed Item 106(a) be helpful? Why or why not? If defining this term would be helpful, is the definition provided above appropriate, or is there another definition that would better define “cybersecurity”?
20. Should we require the registrant to specify whether any cybersecurity assessor, consultant, auditor, or other service that it relies on is through an internal function or through an external third-party service provider? Would such a disclosure be useful for investors?
21. As proposed, a registrant that has not established any cybersecurity policies or procedures would not have to explicitly state that this is the case. If applicable, should a registrant have to explicitly state that it has not established any cybersecurity policies and procedures?
22. Are there concerns that certain disclosures required under Item 106 would have the potential effect of undermining a registrant's cybersecurity defense efforts or have other potentially adverse effects by highlighting a registrant's lack of policies and procedures related to cybersecurity? If so, how should we address these concerns while balancing investor need for a sufficient description of a registrant's policies and procedures for purposes of their investment decisions?
23. Should we exempt certain categories of registrants from proposed Item 106, such as smaller reporting companies, emerging growth companies, or FPIs? If so, which ones and why? How would any exemption impact investor assessments and comparisons of the cybersecurity risks of registrants? Alternatively, should we provide for scaled disclosure requirements by any of these categories of registrants, and if so, how?
24. Should we provide for delayed compliance or other transition provisions for proposed Item 106 for certain categories of registrants, such as smaller reporting companies, emerging growth companies, FPIs, or asset-backed securities issuers? Proposed Item 106(b), which would require companies to provide disclosures regarding existing policies and procedures for the identification and management of cybersecurity incidents, would be required in annual reports. Should the proposed Item 106(b) disclosures also be required in registration statements under the Securities Act and the Exchange Act?
25. To what extent would disclosure under proposed Item 106 overlap with disclosure required under Item 407(h) of Regulation S-K (“Board leadership structure and role in oversight”) with respect to board oversight of cybersecurity risks? To the extent there is significant overlap, should we expressly provide for the use of hyperlinks or cross-references in Item 106? Are there other approaches that would effectively decrease duplicative disclosure without being cumbersome for investors?
Cybersecurity is already among the top priorities of many boards of directors
We propose to amend Item 407 of Regulation S-K by adding paragraph (j) to require disclosure about the cybersecurity expertise of members of the board of directors of the registrant, if any. If any member of the board has cybersecurity expertise, the registrant would have to disclose the name(s) of any such director(s), and provide such detail as necessary to fully describe the nature of the expertise.
The proposed requirements would build upon the existing disclosure requirements in Item 401(e) of Regulation S-K (business experience of directors) and Item 407(h) of Regulation
Proposed Item 407(j) would not define what constitutes “cybersecurity expertise,” given that such expertise may cover different experiences, skills, and tasks. Proposed Item 407(j)(1)(ii) does, however, include the following non-exclusive list of criteria that a registrant should consider in reaching a determination on whether a director has expertise in cybersecurity:
• Whether the director has prior work experience in cybersecurity, including, for example, prior experience as an information security officer, security policy analyst, security auditor, security architect or engineer, security operations or incident response manager, or business continuity planner;
• Whether the director has obtained a certification or degree in cybersecurity; and
• Whether the director has knowledge, skills, or other background in cybersecurity, including, for example, in the areas of security policy and governance, risk management, security assessment, control evaluation, security architecture and engineering, security operations, incident handling, or business continuity planning.
Proposed Item 407(j)(2) would state that a person who is determined to have expertise in cybersecurity will not be deemed an expert for any purpose, including, without limitation, for purposes of Section 11 of the Securities Act (15 U.S.C. 77k),
26. Would proposed Item 407(j) disclosure provide information that investors would find useful? Should it be modified in any way?
27. Should we require disclosure of the names of persons with cybersecurity expertise on the board of directors, as currently proposed in Item 407(j)(1)? Would a requirement to name such persons have the unintended effect of deterring persons with this expertise from serving on a board of directors?
28. When a registrant does not have a person with cybersecurity expertise on its board of directors, should the registrant be required to state expressly that this is the case under proposed Item 407(j)(1)? As proposed, we would not require a registrant to make such an explicit statement.
29. Proposed Item 407(j) would require registrants to describe fully the nature of a board member's expertise in cybersecurity without mandating specific disclosures. Is there particular information that we should instead require a registrant to disclose with respect to a board member's expertise in cybersecurity?
30. As proposed, Item 407(j)(1) includes a non-exclusive list of criteria that a company should consider in determining whether a director has expertise in cybersecurity. Are these factors for registrants to consider useful in determining cybersecurity expertise? Should the list be revised, eliminated, or supplemented?
31. Would the Item 407(j) disclosure requirements have the unintended effect of undermining a registrant's cybersecurity defense efforts or otherwise impose undue burdens on registrants? If so, how?
32. Should 407(j) disclosure of board expertise be required in an annual report and proxy or information statement, as proposed?
33. To what extent would disclosure under proposed Item 407(j) overlap with disclosure required under Item 401(e) of Regulation S-K with respect to the business experience of directors? Are there alternative approaches that would avoid duplicative disclosure without being cumbersome for investors?
34. As proposed, Item 407(j) does not include a definition of the term “expertise” in the context of cybersecurity? Should Item 407(j) define the term “expertise”? If so, how should we define the term?
35. Should certain categories of registrants, such as smaller reporting companies, emerging growth companies, or FPIs, be excluded from the proposed Item 407(j) disclosure requirement? How would any exclusion affect the ability of investors to assess the cybersecurity risk of a registrant or compare such risk among registrants?
36. Should we adopt the proposed Item 407(j)(2) safe harbor to clarify that a director identified as having expertise in cybersecurity would not have any increased level of liability under the federal securities laws as a result of such identification? Are there alternatives we should consider?
37. As proposed, disclosure under Item 407(j) would be required in a proxy or information statement. Should we require the disclosure under Item 407(j) to appear in a registrant's proxy or information statement regardless of whether the registrant is relying on General Instruction G(3)? Is this information relevant to a security holder's decision to vote for a particular director?
We propose to amend Form 20-F to add Item 16J that would require an FPI to include in its annual report on Form 20-F the same type of disclosure that we propose in Items 106 and 407(j) of Regulation S-K and that would be required in periodic reports filed by domestic registrants. One difference is that while domestic registrants would be required to include the proposed Item 407(j) disclosure about board expertise in both their annual reports and proxy or information statements, FPIs are not subject to Commission rules for proxy or information statement filings and thus, would only be required to include this disclosure in their annual reports.
With respect to incident disclosure, where an FPI has previously reported an incident on Form 6-K, the proposed amendments would require an update regarding such incidents, consistent with proposed Item 106(d)(1) of Regulation S-K.
The Commission created Form 40-F in connection with its establishment of a multijurisdictional disclosure system (“MJDS”). This system generally
38. Should we amend Form 20-F, as proposed to require disclosure regarding cybersecurity risk management and strategy, governance, and incidents? Additionally, should we amend Form 6-K, as proposed, to add “cybersecurity incidents” as a reporting topic? Are there unique considerations with respect to FPIs in these contexts?
39. We are not proposing any changes to Form 40-F. Should we instead require an MJDS issuer filing an annual report on Form 40-F to comply with the Commission's specific proposed cybersecurity-related disclosure requirements in the same manner as Form 10-K or Form 20-F filers?
We are proposing to require registrants to tag the information specified by Item 1.05 of Form 8-K and Items 106 and 407(j) of Regulation S-K in Inline XBRL in accordance with Rule 405 of Regulation S-T (17 CFR 232.405) and the EDGAR Filer Manual.
Requiring Inline XBRL tagging of the disclosures provided pursuant to these disclosure items would benefit investors by making the disclosures more readily available and easily accessible to investors, market participants, and others for aggregation, comparison, filtering, and other analysis, as compared to requiring a non-machine readable data language such as ASCII or HTML. This Inline XBRL tagging would enable automated extraction and analysis of the granular data required by the proposed rules, allowing investors and other market participants to more efficiently perform large-scale analysis and comparison of this information across registrants and time periods. For narrative disclosures, an Inline XBRL requirement would allow investors to extract and search for disclosures about cybersecurity incidents reported on Form 8-K, updated information about cybersecurity incidents reported in a registrant's periodic reports, a registrant's cybersecurity policies and procedures, management's role in assessing and managing cybersecurity risks, and the board of directors' oversight of cybersecurity risk and cybersecurity expertise rather than having to manually run searches for these disclosures through entire documents. The Inline XBRL requirement would also enable automatic comparison of these disclosures against prior periods, and targeted artificial intelligence/machine learning assessments of specific narrative disclosures rather than the entire unstructured document. At the same time, we do not expect the incremental compliance burden associated with tagging the proposed additional information to be unduly burdensome because registrants subject to the proposed tagging requirements are for the most part subject to similar Inline XBRL requirements in other Commission filings.
40. Should we require registrants to tag the disclosures required by proposed Item 1.05 of Form 8-K and Items 106 and 407(j) of Regulation S-K in Inline XBRL, as proposed? Are there any changes we should make to ensure accurate and consistent tagging? If so, what changes should we make? Should we require registrants to use a different structured data language to tag these disclosures? If so, what structured data language should we require? Are there any registrants, such as smaller reporting companies, emerging growth companies, or FPIs that we should exempt from the tagging requirement?
We request and encourage any interested person to submit comments regarding the proposed rule amendments, specific issues discussed in this release, and other matters that may have an effect on the proposed rule amendments. With regard to any comments, we note that such comments are of particular assistance to our rulemaking initiative if accompanied by supporting data and analysis of the issues addressed in those comments.
Cybersecurity threats and incidents continue to increase in prevalence and seriousness, posing an ongoing and escalating risk to public companies, investors, and other market participants.
As described earlier, while cybersecurity incident disclosure has become more frequent since the issuance of the 2011 Staff Guidance and 2018 Interpretive Release, there is concern that material cybersecurity incidents are underreported.
Investors also need to better understand the growing cybersecurity risks registrants are facing and their ability to manage such risks in order to better value their securities. Executives, boards of directors, and investors are focused on this emerging risk. A 2019 survey of CEOs, boards of directors, and institutional investors found that they identified cybersecurity as the top global challenge for CEOs.
Disclosures about cybersecurity risk management, strategy, and governance are increasing, although they are not currently provided by all registrants. An analysis of disclosures by Fortune 100 companies found that disclosures of cybersecurity risk in proxy statements were found in 89 percent of filings in 2020, up from 79 percent in 2018, and disclosures of efforts to mitigate cybersecurity risk were found in 92 percent of proxy statements or 10-K Forms, up from 83 percent in 2018.
As with incident reporting, there is a lack of uniformity in current reporting practice for cybersecurity risk management, strategy, and governance disclosure.
To provide investors and other market participants with more timely, informative, and consistent disclosure about cybersecurity incidents, and cybersecurity risk management, strategy, and governance, we are proposing the following amendments.
For disclosures regarding cybersecurity risk management, strategy, and governance, we are proposing the following. First, we propose to amend Regulation S-K to require disclosure specified in proposed new Item 106(b) and (c) regarding: (1) A registrant's policies and procedures if any, for identifying and managing cybersecurity risks, (2) a registrant's cybersecurity governance, including the board of directors' oversight role regarding cybersecurity-related issues, and (3) management's role and expertise in assessing and managing cybersecurity risks and implementing related policies, procedures and strategies. Second, we propose to amend Item 407 of Regulation S-K to require disclosure about cybersecurity expertise of any member of the board.
The discussion below addresses the potential economic effects of the proposed amendments, including the likely benefits and costs, as well as the likely effects on efficiency, competition, and capital formation.
To assess the economic impact of the proposed rules, the Commission is using as its baseline the existing regulatory framework for cybersecurity disclosure. As discussed in Section I, although a number of rules and regulations impose an obligation on companies to disclose cybersecurity risks and incidents in certain circumstances, the Commission's regulations currently do not explicitly address cybersecurity.
In 2011, the Division of Corporation Finance issued interpretive guidance providing the Division's views concerning operating companies' disclosure obligations relating to cybersecurity risks and incidents.
Companies currently may also be subject to other cybersecurity incident disclosure requirements adopted by various industry regulators and contractual counterparties. For example, federal contractors may be required to monitor and report cybersecurity incidents and breaches or face liability under the False Claims Act.
Some companies are also subject to other mandates to fulfill a basic level of cybersecurity risk management, strategy, and governance. For instance, government contractors may be subject to the Federal Information Security Modernization Act, and use the National Institute of Standards and Technology framework to manage information and privacy risks.
The proposed new disclosure requirements would apply to various filings, including current reports, periodic reports, and certain proxy statements filed with the Commission. Thus, the parties that are likely to be affected by the proposed rules include investors, registrants, other market participants that use the information in these filings (such as financial analysts, investment advisers, and portfolio managers) and external stakeholders such as consumers and other companies in the same industry as affected firms.
We expect the proposed rules to affect all companies with relevant disclosure obligations on Forms 10-K, 10-Q, 20-F, 8-K, or 6-K, and proxy statements. This includes approximately 7,848 companies filing on domestic forms and 973 FPIs filing on foreign forms based on all companies that filed such forms or an amendment thereto during calendar year 2020.
Our textual analysis
As presented in Table 1, approximately 94% (4,029) of Form 10-K or amendment filers that provided any cyber-related disclosures included discussion of cybersecurity as a material risk factor in Item 1A.
We further estimate that, in 2020, approximately 603 domestic companies reported having a director on their board with cybersecurity experience or expertise. This estimate is based on a review of cybersecurity disclosures by registrants that filed either a Form 10-K or an amended Form 10-K in 2020 that included cybersecurity-related language in their Item 10 (Directors and Executive Officers of the Registrant) discussion or provided similar disclosures in a proxy filing instead.
Finally, there were a total of 74,098 Form 8-K filings in 2020, involving 7,021 filers, out of which 40 filings reported material cybersecurity incidents. Similarly, there were a total of 23,373 Form 6-K filings in 2020, involving 979 filers, out of which 27 filings reported material cybersecurity incidents. Filers of annual, quarterly, or current reports (Forms 10-K, 10-Q, 20-F, 8-K, or 6-K) including a cybersecurity discussion in any form included 104 business development companies.
We have considered the potential benefits and costs associated with the proposed amendments. The proposed rules would benefit investors and other market participants by providing more timely and informative disclosures relating to cybersecurity incidents and cybersecurity risk management, strategy, and governance, facilitating investor decision-making and reducing information asymmetry in the market. The proposed amendments also would entail costs. For instance, in addition to the costs of providing the disclosure itself, more detailed disclosure could potentially increase the vulnerability of registrants and the risk of future attacks. A discussion of the anticipated economic costs and benefits of the proposed amendments is set forth in more detail below. We first discuss benefits to investors (and other market participants, such as financial analysts, investment advisers, and portfolio managers) and registrants. We subsequently discuss costs to investors and registrants. We conclude with a discussion of indirect economic effects on registrants and external stakeholders, such as consumers, and companies in the same industry with registrants or those facing similar cybersecurity threats.
We also expect the proposed amendments to affect compliance burdens. The quantitative estimates of changes in those burdens for purposes of the Paperwork Reduction Act of 1995 (“PRA”) are further discussed in Section [IV] below. For purposes of the PRA, we estimate that the proposed amendments would result in an increase of 2,000 and
Investors would be the main beneficiaries from the enhanced disclosure of both cybersecurity incidents and cybersecurity risk management, strategy, and governance as a result of the proposed amendments. Specifically, investors would benefit because: (1) More informative and timely disclosure would reduce mispricing of securities in the market and facilitate their decision making; and (2) more uniform and comparable disclosures would lower search costs and information processing costs. Other market participants that rely on financial statement information to provide services to investors, such as financial analysts, investment advisers, and portfolio managers, could also benefit. Registrants could benefit, because the enhanced disclosure as a result of the proposed amendments could reduce information asymmetry and potentially lower registrants' cost of capital.
More informative and timely disclosures would reduce mispricing of securities in the market and facilitate investor decision making. Information benefits would result from both types of disclosure,
The proposed amendments would provide more informative disclosures related to cybersecurity incidents and cybersecurity risk management, strategy, and governance compared to the current disclosure framework, benefiting investors. The increase in disclosure would allow investors to better understand a registrant's cybersecurity risks and ability to manage such risks, and thereby make more informed investment decisions. As discussed in Section I, currently, there are no disclosure requirements that explicitly refer to cybersecurity risks or incidents. While existing disclosure requirements may apply to material cybersecurity incidents and various cybersecurity risks and mitigation efforts, as highlighted in the 2011 Staff Guidance and the 2018 Interpretive Release, the existing disclosure requirements are more general in nature, and the resulting disclosures have not been consistently sufficient or necessarily informative.
Specifically, regarding incident reporting, there is concern that material cybersecurity incidents are underreported,
Similarly, the proposed disclosure about cybersecurity risk management, strategy, and governance would include a number of specific items that registrants must disclose. For instance, the proposed rules would require disclosure regarding a registrant's policies and procedures for identifying and managing cybersecurity risks.
We anticipate the proposed cybersecurity incident reporting would also lead to more timely disclosure to investors. As discussed above, currently, it could take months for registrants to disclose a material cybersecurity incident after its discovery.
More informative and timely disclosure as a result of the proposed amendments would benefit investors because the enhanced disclosure could allow them to better understand the impact of a cybersecurity incident on the registrant, the risk a registrant is facing and its ability to manage the risk. Such information is relevant to the valuation of registrants' securities and thereby investors' decision making. It is well documented in the academic literature that the market reacts negatively to announcements of cybersecurity incidents. For example, one study finds a significant mean cumulative abnormal return of -0.84% in the three days following cyberattack announcements, which, according to the study, translates into an average value loss of $495 million per attack.
In addition, the mispricing resulting from delayed or limited disclosure could be exploited by the malicious actors who caused a cybersecurity incident, or those who could access and trade on material information stolen during a cybersecurity incident, causing further harm to investors.
Overall, we believe enhanced disclosure as a result of the proposed amendments could benefit investors by allowing them to make more informed decisions. Similarly, other market participants that rely on financial statement information to provide services to investors would also benefit, because more informative and timely disclosure would allow them to better understand a registrant's cybersecurity risks and ability to manage such risks. As a result, they would be able to better evaluate registrants' securities and provide better recommendations. However, we note that the potential benefit could be reduced to the extent that registrants have already been providing the relevant disclosures.
We are unable to quantify the potential benefit to investors and other market participants as a result of the increase in disclosure and improvement in pricing under the proposed amendments. The estimation requires information about the fundamental value of securities and the extent of the mispricing. We do not have access to such information, and therefore cannot provide a reasonable estimate.
The proposed disclosure about cybersecurity incidents and cybersecurity risk management, strategy, and governance could also lead to more uniform and comparable disclosures, benefiting investors by lowering their search costs and information processing costs. As discussed in Section I, while some registrants currently file Form 8-K to report an incident, their reporting practices vary widely.
We note that to the extent that the disclosures related to cybersecurity risk management, strategy, and governance become too uniform or “boilerplate,” the benefit of comparability may be diminished. However, we also note that given the level of the specificity that would be required, the resulting disclosures are unlikely to become boilerplate.
The proposed requirement to tag the cybersecurity disclosure in Inline XBRL would likely augment the aforementioned informational and comparability benefits by making the proposed disclosures more easily retrievable and usable for aggregation, comparison, filtering, and other analysis. XBRL requirements for public operating company financial statement disclosures have been observed to mitigate information asymmetry by reducing information processing costs, thereby making the disclosures easier to access and analyze.
While these observations are specific to operating company financial statement disclosures and not to disclosures outside the financial statements, such as the proposed cybersecurity disclosures, they suggest that the proposed Inline XBRL requirements could directly or indirectly (
The proposed amendments regarding both incident reporting and risk management, strategy, and governance disclosure could potentially lower registrants' cost of capital, especially for those who currently have strong cybersecurity risk management, strategy, and governance measures in place. Economic theory suggests that better disclosure could reduce information asymmetry between management and investors, reducing the cost of capital, and thereby improving firms' liquidity and their access to capital markets.
The proposed amendments' effect on cost of capital might vary depending on registrants' current level of cybersecurity risk management, strategy, and governance and whether they are already making disclosures regarding their efforts. To the extent that they have not been making the proposed disclosure, registrants with stronger cybersecurity risk management, strategy, and governance measures could be priced more favorably under the proposed amendments because the proposed disclosure would allow the market to better differentiate them from the registrants with less robust measures. To the extent that some registrants are already making disclosures about their robust cybersecurity risk management, strategy, and governance programs, these registrants would benefit less. However, if registrants that previously had less robust cybersecurity risk management, strategy, and governance disclose improvements in their cybersecurity risk management, strategy, and governance in response to the proposed amendments, their cost of capital could also decrease.
Registrants could also benefit from more uniform regulations regarding the timing of disclosures and the types of cybersecurity incident and risk disclosures as a result of the proposed amendments. Currently, the stigma or reputation loss associated with cybersecurity breaches may result in companies limiting reporting about or delaying reporting of cybersecurity incidents.
In addition, by formalizing the disclosure requirements related to cybersecurity incidents and cybersecurity risk management, strategy, and governance and specifying the topics to be discussed, the proposed amendments could reduce compliance costs for those registrants who are currently providing disclosure about these topics. The compliance costs would only be reduced to the extent that those registrants may be over-disclosing information, because there is uncertainty about what is required under the current rules. For instance,
We are unable to quantify these potential benefits to registrants as a result of the proposed amendments due to lack of data. For example, we are unable to observe the actual cybersecurity risk registrants are facing. Without such information, we cannot provide a reasonable estimate on how registrants' cybersecurity risk and therefore their cost of capital may decrease.
We also recognize that enhanced cybersecurity disclosure could result in costs to registrants, depending on the timing and extent of the disclosure. These costs include potential increases in registrants' vulnerability, information uncertainty, and compliance costs. We discuss these costs below.
First, the proposed disclosure about cybersecurity incidents and cybersecurity risk management, strategy, and governance could potentially increase the vulnerability of registrants. Ever since the issuance of the 2011 Staff Guidance, concerns have been raised that providing detailed disclosures of cybersecurity incidents can create the risk of providing a road map for future attacks.
The proposed changes to Form 8-K and Form 6-K would require registrants to timely file current reports on these forms to disclose material cybersecurity incidents. The proposed disclosures include, for example, the nature and scope of the disclosed incident and whether the registrant has remediated or is currently remediating the incidents. While we have clarified that we would not expect a registrant to publicly disclose specific, technical information about its planned response to the incident or its cybersecurity systems, related networks and devices, or potential system vulnerabilities in such detail as would impede the registrant's response or remediation of the incident (to the extent that a registrant discloses information that could provide clues to malicious actors regarding a registrant's areas of vulnerability) it may face increased risk. Malicious actors could engage in further attacks based on the information, especially given that registrants would also need to make timely disclosure, which could mean that the underlying security issues might not have been completely resolved, thereby potentially exacerbating the ongoing attack. As a result, the proposed incident disclosure rules could potentially increase the vulnerability of registrants, imposing a cost on them and their investors.
Similar concerns could be raised about the proposed risk management, strategy, and governance disclosure. Specifically, proposed Item 407(j) would require registrants to disclose whether a member of its board of directors has cybersecurity expertise, and proposed new Items 106(b) and (c) would require registrants to provide specified disclosure regarding their cybersecurity policies and procedures and cybersecurity governance by a company's management and board. The required disclosure could provide malicious actors information about which companies lack a board of directors with cybersecurity expertise, and which ones have weak policies and procedures related to cybersecurity risk management, and allow such malicious actors to determine their targets accordingly.
However, academic research so far has not provided evidence that more detailed cybersecurity risk disclosures would necessarily lead to more attacks.
Second, the proposed cybersecurity incident disclosure could potentially increase information uncertainty related to securities, because the disclosure about the impact of the incident on the registrant's operations may lack the precision needed for investors and the market to properly value these securities. While the proposed changes to Form 8-K could improve the timeliness of cybersecurity incident reporting and result in more disclosure about the impact of the incident on the registrant's operations, the proposed rules do not require registrants to quantify the impact of the incident. As a result, registrants' disclosure about the impact of a cybersecurity incident could be qualitative in nature or lack the precision needed for investors and the market to properly value the securities, potentially leading to information uncertainty, investor under or overreaction to certain disclosures, and thereby mispricing of registrants' securities.
Additionally, while the proposed disclosure could have the overall effect of reducing registrants' cost of capital as discussed in Section III.C.1.b, we also recognize that a subset of registrants might experience an increase in costs of capital. More specifically, under the
Finally, the proposed rules would impose compliance costs for registrants. Registrants would incur one-time and ongoing costs to fulfill the proposed new disclosure requirements under Items 106 and 407 of Regulation S-K. These costs would include costs to gather the information and prepare the disclosures.
Registrants would also incur compliance costs to fulfill the proposed disclosure requirements related to Form 8-K (Form 6-K for FPIs) incident reporting and Form 10-Q/10-K (Form 20-F for FPIs) ongoing reporting.
We note that BDCs could be subject to both the proposed rules and rule amendments in the Investment Management Cybersecurity Proposing Release
The compliance costs would also include costs attributable to the Inline XBRL tagging requirements. Various preparation solutions have been developed and used by operating companies to fulfill XBRL requirements, and some evidence suggests that, for smaller companies, XBRL compliance costs have decreased over time.
Other than the Paperwork Reduction Act costs discussed in Section IV below, we are unable to quantify the potential increase in costs related to the proposed rules due to the lack of data. For example, we lack data to estimate how registrants' cybersecurity vulnerability would change under the proposal, because such change would depend on their current level of vulnerability. We are also unable to estimate the potential increase in mispricing as a result of the information uncertainty, because the level of the uncertainty would depend on registrants' disclosure.
Besides the direct economic effects on investors, registrants and other market participants we discussed above, we recognize that the proposed amendments could also indirectly affect registrants and external stakeholders, such as consumers, companies in the same industry with registrants or those facing similar cybersecurity threats.
While the proposal would only require disclosures—not changes to registrants' board composition or risk management practices—the disclosures themselves could result in certain indirect benefits. Registrants might respond to the proposed disclosures by devoting more resources to cybersecurity governance and risk management. To the extent that registrants may decide to enhance their cybersecurity risk management in anticipation of the increased disclosure, it could reduce registrants' susceptibility to a cybersecurity-attack and thereby the likelihood of future incidents, indirectly benefiting registrants.
Registrants may also decide to incur certain indirect costs as a result of the proposed amendments. For example, the proposed rules would require disclosure of whether members of the board or management staff have expertise in cybersecurity.
In addition, the proposed requirement to tag the cybersecurity disclosure in Inline XBRL could have indirect effects on registrants. As discussed in section III.C.1.a.(ii), XBRL requirements for public operating company financial statement disclosures could reduce information processing cost. This reduction in information processing cost has been observed to facilitate the monitoring of companies by other market participants, and, as a result, to influence companies' behavior, including their disclosure choices.
The proposed amendments to require registrants to timely disclose material cybersecurity incidents could indirectly benefit external stakeholders such as other companies in the same industry, those facing similar cybersecurity threats or consumers. Cybersecurity incidents could result in costs not only to the company that suffers the incident, but also to other businesses and consumers. For example, a cybersecurity breach at one company may cause a major disruption or shut down of a critical infrastructure industry, such as a gas pipeline, a bank, or power company, resulting in massive losses throughout the economy.
In addition, the proposed amendments regarding cybersecurity risk management, strategy, and governance disclosure could indirectly benefit external stakeholders through potentially reduced likelihood of future incidents and negative externalities associated with the incidents. As discussed above, to the extent that registrants may decide to enhance their cybersecurity risk management in anticipation of the increased disclosure, it could reduce registrants' susceptibility to a cybersecurity-attack and thereby the likelihood of future incidents, leading to positive spillover effects.
We are unable to quantify the indirect effects as a result of the proposed amendments because we lack data or basis to estimate the potential changes in disclosure of cybersecurity incidents, risk management, strategy, and governance disclosure and the reduction in negative spill-over effects.
Overall, we believe the proposed rules could have positive effects on market efficiency. As discussed above, the proposed rules could improve the timeliness and informativeness of cybersecurity risk disclosure. Investors and other market participants could better understand the cybersecurity threats registrants are facing, their potential impact, and registrants' ability to respond to and manage risks under the proposed rules, and thereby better evaluate registrants' securities and make more informed decisions. As a result, the proposed disclosures could reduce information asymmetry and mispricing in the market, improving liquidity and market efficiency. However, we also recognize that, because registrants' disclosure about the impact of a cybersecurity incident could be qualitative in nature and lack the precision needed for investors and the market to properly value the securities, the proposed incident disclosure might lead to information uncertainty and investor overreaction. We believe such effect should be reduced by more informative reporting from other aspects of the proposed disclosure and subsequent updates in periodic reports.
A more efficient market as a result of the proposed rules could promote competition among firms. Because the enhanced incident reporting and cybersecurity risk management, strategy, and governance disclosure could allow investors to better evaluate the relative cybersecurity risks for different registrants, firms that disclose robust cybersecurity risk management, strategy, and governance could benefit from a competitive advantage relative to firms that do not. This could have a secondary effect of further incentivizing firms that to-date have invested less in cybersecurity preparation to invest more, to the benefit of investors, in order to become more competitive.
More efficient prices and more liquid markets could help allocate capital to its most efficient uses. Enhanced disclosure of cybersecurity incidents and cybersecurity risk management, strategy, and governance could allow investors to make more informed investment decisions. As a result, companies that disclose more robust cybersecurity risk management, strategy, and governance and thus may be less susceptible to cybersecurity incidents may receive more capital allocation. By making information related to material incident available to the public sooner, and reducing the information asymmetry, the proposed amendments could increase public trust in markets, thereby aiding in capital formation.
As an alternative to Form 8-K disclosure of material cybersecurity incidents, we considered providing companies with the option of disclosing this information through company websites, instead of through filing a Form 8-K, when the company has disclosed its intention to do so in its most recent annual report and subject to information availability and retention requirements. While this approach may be less costly for the registrant as it may involve fewer compliance costs and less legal liability compared to a filing of a Form 8-K, the website disclosure would not be located in the same place as other companies' disclosures of material cybersecurity incidents. Also, disclosures made on company websites would not be organized into the standardized sections found in Form 8-K and could thus be less uniform.
The lack of a central repository, such as the EDGAR system,
We also considered requiring disclosure of material cybersecurity incidents through Form 10-Q or Form 10-K instead of Form 8-K. Reporting material cybersecurity incidents at the end of the quarter or year would allow registrants more time to assess the financial impact of such incidents. The resulting disclosure might be more specific or informative for investors and other market participants to value the securities and make more informed decisions. The compliance costs would be less under this alternative, because registrants would not have an obligation to file Form 8-K. With lower compliance costs under this alternative, registrants could use the resources that would go towards disclosure on Form 8-K to instead fill gaps in their cybersecurity defenses exposed by the attack, potentially making it less likely that malicious actors would be able to exploit such vulnerabilities.
However, it would lead to less timely reporting on material cybersecurity incidents. As a result, the market would not be able to incorporate the information related to cybersecurity risk into the security prices in as timely a manner, and investors and other market participants would not be able to make as informed decisions as they could under the proposed approach.
We also considered exempting smaller reporting companies from proposed Item 106 and Item 407, because smaller companies might incur a cost that is disproportionally high, compared to larger companies under the proposed rules. As discussed above, proposed disclosure might expose registrants' cybersecurity weakness and increase their vulnerability. To avoid the potential exposure, smaller companies might increase spending related to cybersecurity risk management measures, which could be disproportionately costly. Also, to the extent that they do not have similar disclosure practices in place currently, it might be relatively more costly for smaller companies to implement the proposed disclosure requirements than larger companies, because they may have fewer resources.
However, evidence suggests that smaller companies may have an equal or greater risk than larger companies of being attacked, making the proposed disclosures particularly important for their investors.
We also considered changing the scope of the proposed tagging requirements, such as by excluding certain subsets of registrants. For example, the proposed tagging requirements could have excluded asset-backed securities issuers, which are not currently required to tag any filings in Inline XBRL.
We request comment on all aspects of our economic analysis, including the potential costs and benefits of the proposed rules and alternatives thereto, and whether the proposed rules, if adopted, would promote efficiency, competition, and capital formation or have an impact on investor protection. In addition, we also seek comment on alternative approaches to the proposed rules and the associated costs and benefits of these approaches. Commenters are requested to provide empirical data, estimation methodologies, and other factual support for their views, in particular, on costs and benefits estimates. Specifically, we seek comment with respect to the following questions:
41. What are the economic effects of the proposed cybersecurity incident and cybersecurity risk management, strategy, and governance disclosures? Would those disclosures provide informational benefits to investors? Would registrants benefit from a potential decrease in cost of capital because of the enhanced disclosure? Are there any other benefits, costs, and indirect effects of the proposed disclosure that we should also consider?
42. Would the proposed cybersecurity incident disclosure provide enough information for investors to assess the impact of a cybersecurity incident in making an investment decision? Because the proposed incident disclosure would not require quantification of an incident's impact, would the lack of quantification create any uncertainty for investors which may cause them to under or overreact to the disclosure? Would investors benefit more if registrants were to provide the disclosure after the incident's impact is quantified or can be reasonably estimated? If so, what metrics should be disclose to help investors understand the impact?
43. Would both types of the proposed disclosure, cybersecurity incident disclosure and cybersecurity risk management, strategy, and governance disclosure, increase the vulnerability of registrants to cybersecurity incidents? Would this effect be mitigated by any of the other effects of the proposal, including indirect effects such as registrants' potential strengthening of cybersecurity risk management measures? What would be the impact of the proposed disclosure on the likelihood of future incidents for registrants? Would that impact be the same for both types of disclosure?
44. Would the proposed incident disclosure increase registrants' compliance costs to fulfill the proposed disclosure requirements related to incident reporting? What would be the magnitude of those costs? Would the proposed cybersecurity risk management, strategy, and governance disclosure lead to indirect costs such as hiring a board member or staff to their management team with cybersecurity expertise, or costs to devise, implement or improve the processes and procedures related to cybersecurity?
45. Would both types of the proposed disclosure lead to indirect economic effects for external stakeholders? Would the magnitude of the indirect effects be greater or less than we have discussed? Are there any other indirect effects that we should consider?
46. Are there any specific data points that would be valuable for assessing the economic effects of the proposed cybersecurity incident and risk management, strategy, and governance that we should consider in the baseline analysis or the analysis of the economic effects? If so, please provide that data.
47. Would any of the economic effects discussed above be more or less significant than in our assessment? Are any of the costs or benefits identified incorrectly for any of the proposed amendments? Are there any other economic effects associated with these proposed rules that we should consider? Are you aware of any data or methodology that can help quantify the benefits or costs of the proposed amendments?
48. Would any of the proposed amendments positively affect efficiency, competition and capital formation as we have discussed? Are there any other effects on efficiency, competition, and capital formation that we should consider?
49. Would any of the proposed amendments have disproportionate costs for smaller reporting companies? Do smaller reporting companies face a different set of cybersecurity risks than other companies?
50. Are there any other alternative approaches to improve disclosure of material cybersecurity incidents, cybersecurity risk management, strategy, or governance that we should consider? If so, what are they and what would be the associated costs or benefits of these alternative approaches?
51. Are there any other costs and benefits associated with alternative approaches that are not identified or are misidentified in the above analysis? Should we consider any of the alternative approaches outlined above instead of the proposed rules? Which approach and why?
Certain provisions of our rules and forms that would be affected by the proposed amendments contain “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
• “Schedule 14C” (OMB Control No. 3235-0057);
• “Schedule 14A” (OMB Control No. 3235-0059);
• “Form 8-K” (OMB Control No. 3235-0060);
• “Form 10-K” (OMB Control No. 3235-0063);
• “Form 10-Q” (OMB Control No. 3235-0070);
• “Form 6-K” (OMB Control No. 3235-0116); and
• “Form 20-F” (OMB Control No. 3235-0288).
We adopted the existing forms, pursuant to the Exchange Act. The forms set forth the disclosure requirements for periodic and current reports as well as proxy and information statements filed by issuers to help investors make informed investment and voting decisions. A description of the proposed amendments, including the need for the information and its proposed use, as well as a description of the likely respondents, can be found in Section II above, and a discussion of the economic effects of the proposed amendments can be found in Section III above.
The following table summarizes the estimated paperwork burdens associated with the proposed amendments to the affected forms.
Not every filing on the affected current forms, Form 6-K and Form 8-K, would include cybersecurity disclosures. These disclosures would be required only when a registrant has made the determination that it has experienced a material cybersecurity incident. Further, in the case of Form 6-K, the registrant would only have to provide the disclosure if it is required to disclose such information elsewhere.
The table below sets forth our estimates of the number of current filings on the forms which will be affected by the proposed rules. We used this data to extrapolate the effect of these changes on the paperwork burden for the listed periodic reports.
Below we estimate the incremental and aggregate changes in paperwork burden as a result of the proposed amendments. These estimates represent the average burden for all respondents, both large and small. In deriving our estimates, we recognize that the burdens will likely vary among individual respondents based on a number of factors, including the nature of their business.
We calculated the additional burden estimates by multiplying the estimated additional burden per form by the estimated number of responses per form. That additional burden is then added to the existing burden per form. For purposes of the PRA, the burden is
PRA Table 5 below illustrates the incremental change to the total annual compliance burden of affected forms, in hours and in costs, as a result of the proposed amendments' estimated effect on the paperwork burden per response.
The following tables summarize the requested paperwork burden, including the estimated total reporting burdens and costs, under the proposed amendments.
Pursuant to 44 U.S.C. 3506(c)(2)(B), we request comment in order to:
• Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility;
• Evaluate whether the Commission's estimates of the burden of the proposed collection of information are accurate;
• Determine whether there are ways to enhance the quality, utility, and
• Evaluate whether there are ways to minimize the burden of the collection of information on those who respond, including through the use of automated collection techniques or other forms of information technology; and
• Evaluate whether the proposed amendments would have any effects on any other collection of information not previously identified in this section.
Any member of the public may direct to us any comments concerning the accuracy of these burden estimates and any suggestions for reducing these burdens. Persons submitting comments on the collection of information requirements should direct their comments to the Office of Management and Budget, Attention: Desk Officer for the U.S. Securities and Exchange Commission, Office of Information and Regulatory Affairs, Washington, DC 20503, and send a copy to Vanessa A. Countryman, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549, with reference to File No. S7-09-22 Requests for materials submitted to OMB by the Commission with regard to the collection of information requirements should be in writing, refer to File No. S7-09-22 and be submitted to the U.S. Securities and Exchange Commission, Office of FOIA Services, 100 F Street NE, Washington DC 20549. OMB is required to make a decision concerning the collection of information requirements between 30 and 60 days after publication of the proposed amendments. Consequently, a comment to OMB is best assured of having its full effect if the OMB receives it within 30 days of publication.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”),
• An annual effect on the U.S. economy of $100 million or more (either in the form of an increase or a decrease);
• A major increase in costs or prices for consumers or individuals industries; or
• Significant adverse effects on competition, investment, or innovation.
We request comment on whether the proposed amendments would be a “major rule” for purposes of SBREFA. In particular, we request comment on the potential effect of the proposed amendments on the U.S. economy on an annual basis; any potential increase in costs or prices for consumers or individual industries; and any potential effect on competition, investment or innovation. Commenters are requested to provide empirical data and other factual support for their views to the extent possible.
When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (“RFA”)
The proposed amendments are intended to provide enhanced disclosures regarding registrants' cybersecurity risk governance and cybersecurity incident reporting. They are designed to better inform investors about material cybersecurity risks and incidents on a timely basis and a registrant's assessment, governance, and management of those risks. The proposed amendments are discussed in more detail in Section II above. We discuss the economic impact and potential alternatives to the amendments in Section III, and the estimated compliance costs and burdens of the amendments under the PRA in Section IV above.
The amendments contained in this release are being proposed under the authority set forth in Securities Act Sections 7 and 19(a) and Exchange Act Sections 3(b), 12, 13, 14, 15, and 23(a).
The proposed amendments would apply to registrants that are small entities. The Regulatory Flexibility Act defines “small entity” to mean “small business,” “small organization,” or “small governmental jurisdiction.”
If adopted, the proposed amendments would apply to small entities to the same extent as other entities, irrespective of size. Therefore, we expect that the nature of any benefits and costs associated with the proposed amendments to be similar for large and small entities. Accordingly, we refer to the discussion of the proposed amendments' economic effects on all affected parties, including small entities, in Section III above. Consistent with that discussion, we anticipate that the economic benefits and costs likely could vary widely among small entities based on a number of factors, such as the nature and conduct of their businesses, which makes it difficult to project the economic impact on small entities with precision. As a general matter, however, we recognize that the costs of the proposed amendments borne by the affected entities could have a proportionally greater effect on small
Compliance with the proposed amendments may require the use of professional skills, including legal skills. We request comment on how the proposed disclosure amendments would affect small entities.
The Commission has also proposed cybersecurity risk management rules and related rule amendments for advisers and funds, including BDCs. To the extent that the proposed rules and rule amendments in the Investment Management Cybersecurity Proposing Release are adopted, BDCs may be subject both to those proposed rules and rule amendments and to certain of the rules proposed in this rulemaking. To the extent that there could be overlap if these proposals are adopted, we would not expect the overlap to result in significant burdens for BDCs (including small BDCs) since they should be able to use their Form 8-K disclosure to more efficiently prepare the corresponding disclosure that would be required by the Investment Management Cybersecurity Proposing Release or, in the alternative, use that corresponding disclosure (if adopted) to prepare their Form 8-K disclosure.
The RFA directs us to consider alternatives that would accomplish our stated objectives, while minimizing any significant adverse impact on small entities. In connection with the proposed amendments, we considered the following alternatives:
• Establishing different compliance or reporting requirements that take into account the resources available to small entities;
• Exempting small entities from all or part of the requirements;
• Using performance rather than design standards; and
• Clarifying, consolidating, or simplifying compliance and reporting requirements under the rules for small entities.
The proposed amendments are intended to better inform investors about cybersecurity incidents and the cybersecurity risk management, strategy, and governance of registrants of all types and sizes which are subject to the Exchange Act reporting requirements. Under current requirements, the nature of registrants' cybersecurity disclosure varies widely, with registrants providing different levels of specificity regarding the cause, scope, impact and materiality of cybersecurity incidents. The timing of disclosure about material cybersecurity incidents also varies in the absence of a specific requirement regarding timely disclosure of such incidents. Further, while registrants generally discuss cybersecurity risks in the risk factor section of their annual reports, the disclosures are sometimes blended with other unrelated disclosures, which makes it more difficult for investors to locate, interpret, and analyze the information provided. The staff also has observed a divergence in these disclosures by industry and that smaller reporting companies generally provide less cybersecurity disclosure as compared to larger registrants.
Exempting small entities from the proposed amendments or establishing different compliance or reporting requirements for small entities could frustrate the goal of providing investors in these companies with more uniform and timely disclosure about material cybersecurity incidents and disclosure about their risk management and governance practices that is comparable to the disclosure provided by other registrants. Further, as stated in Sections II and III of this release, evidence suggests that smaller companies may have an equal or greater risk than larger companies of being attacked, making the proposed disclosures particularly important for investors in these companies.
With respect to using performance rather than design standards, the proposed amendments use primarily use design rather than performance standards to promote more consistent and comparable disclosures by all registrants.
Section II of this release includes specific requests for comment on whether certain categories of registrants, including smaller reporting companies, should be exempted from the proposed Regulation S-K Item 106 disclosure regarding cybersecurity risk management, strategy and governance. The release also requests comment on how any exemption would impact investor assessments and comparisons of the cybersecurity risks of registrants. In addition, comment is solicited on whether smaller reporting companies should be exempted from the board expertise disclosure requirement in proposed Item 407(j) and from the requirements to present the proposed disclosure in Inline XBRL.
We encourage the submission of comments with respect to any aspect of this IRFA. In particular, we request comments regarding:
• The number of small entities that may be affected by the proposed amendments;
• The existence or nature of the potential impact of the proposed amendments on small entities discussed in the analysis;
• How the proposed amendments could further lower the burden on small entities; and
• How to quantify the impact of the proposed amendments.
Commenters are asked to describe the nature of any impact and provide empirical data supporting the extent of the impact. Comments will be considered in the preparation of the Final Regulatory Flexibility Analysis, if the proposed amendments are adopted, and will be placed in the same public file as comments on the proposed amendments themselves.
We are proposing the rule and form amendments contained in this document under the authority set forth in Sections 7 and 19(a) of the Securities Act and Sections 3(b), 12, 13, 14, 15, and 23(a) of the Exchange Act.
Reporting and record keeping requirements, Securities.
For the reasons set forth in the preamble, the Commission is proposing to amend title 17, chapter II of the Code of Federal Regulations as follows:
15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78j-3, 78
(a)
(b)
(1) The registrant has a cybersecurity risk assessment program, and if so, provide a description of such program;
(2) The registrant engages assessors, consultants, auditors, or other third parties in connection with any cybersecurity risk assessment program;
(3) The registrant has policies and procedures to oversee and identify the cybersecurity risks associated with its use of any third-party service provider, including, but not limited to, those providers that have access to the registrant's customer and employee data. If so, the registrant shall describe these policies and procedures, including whether and how cybersecurity considerations affect the selection and oversight of these providers and contractual and other mechanisms the company uses to mitigate cybersecurity risks related to these providers;
(4) The registrant undertakes activities to prevent, detect, and minimize effects of cybersecurity incidents, and if so, provide a description of the types of activities undertaken;
(5) The registrant has business continuity, contingency, and recovery plans in the event of a cybersecurity incident;
(6) Previous cybersecurity incidents informed changes in the registrant's governance, policies and procedures, or technologies;
(7) Cybersecurity-related risks and previous cybersecurity-related incidents have affected or are reasonably likely to affect the registrant's strategy, business model, results of operations, or financial condition and if so, how; and
(8) Cybersecurity risks are considered as part of the registrant's business strategy, financial planning, and capital allocation, and if so, how.
(c)
(i) Whether the entire board, specific board members, or a board committee is responsible for the oversight of cybersecurity risks;
(ii) The processes by which the board is informed about cybersecurity risks, and the frequency of its discussions on this topic; and
(iii) Whether and how the board or board committee considers cybersecurity risks as part of its business strategy, risk management, and financial oversight.
(2) Describe management's role in assessing and managing cybersecurity-related risks, as well as its role in implementing the registrant's cybersecurity policies, procedures, and strategies. The description should include, but not be limited to, the following information:
(i) Whether certain management positions or committees are responsible for measuring and managing cybersecurity risk, specifically the prevention, mitigation, detection, and remediation of cybersecurity incidents, and the relevant expertise of such persons or members in such detail as necessary to fully describe the nature of the expertise;
(ii) Whether the registrant has a designated chief information security officer, or someone in a comparable position, and if so, to whom that individual reports within the registrant's organizational chart, and the relevant expertise of any such persons in such detail as necessary to fully describe the nature of the expertise;
(iii) The processes by which such persons or committees are informed about and monitor the prevention, mitigation, detection, and remediation of cybersecurity incidents; and
(iv) Whether and how frequently such persons or committees report to the board of directors or a committee of the board of directors on cybersecurity risk.
Instructions to Item 106(c): 1. In the case of a foreign private issuer with a two-tier board of directors, for purposes of paragraph (c) of this section, the term board of directors means the supervisory or non-management board. In the case of a foreign private issuer meeting the requirements of § 240.10A-3(c)(3) of this chapter, for purposes of paragraph (c) of this Item, the term board of directors means the issuer's board of auditors (or similar body) or statutory auditors, as applicable.
2. Relevant experience of management in Item 106(c)(2)(i) and (ii) may include, for example: Prior work experience in cybersecurity; any relevant degrees or certifications; any knowledge, skills, or other background in cybersecurity.
(d)
(i) Any material effect of the incident on the registrant's operations and financial condition;
(ii) Any potential material future impacts on the registrant's operations and financial condition;
(iii) Whether the registrant has remediated or is currently remediating the incident; and
(iv) Any changes in the registrant's policies and procedures as a result of the cybersecurity incident, and how the incident may have informed such changes.
(2) The registrant should provide the following disclosure to the extent known to management when a series of previously undisclosed individually immaterial cybersecurity incidents has become material in the aggregate:
(i) A general description of when the incidents were discovered and whether they are ongoing;
(ii) A brief description of the nature and scope of the incidents;
(iii) Whether any data was stolen or altered in connection with the incidents;
(iv) The effect of the incidents on the registrant's operations; and
(v) Whether the registrant has remediated or is currently remediating the incidents.
(e)
(j)
(i) Whether the director has prior work experience in cybersecurity, including, for example, prior experience as an information security officer, security policy analyst, security auditor, security architect or engineer, security operations or incident response manager, or business continuity planner;
(ii) Whether the director has obtained a certification or degree in cybersecurity; and
(iii) Whether the director has knowledge, skills, or other background in cybersecurity, including, for example, in the areas of security policy and governance, risk management, security assessment, control evaluation, security architecture and engineering, security operations, incident handling, or business continuity planning.
(2)
(ii) The designation or identification of a person as having expertise in cybersecurity pursuant to this Item 407(j) does not impose on such person any duties, obligations or liability that are greater than the duties, obligations and liability imposed on such person as a member of the board of directors in the absence of such designation or identification.
(iii) The designation or identification of a person as having expertise in cybersecurity pursuant to this Item 407(j) does not affect the duties, obligations, or liability of any other member of the board of directors.
(3)
Instruction to Item 407(j): In the case of a foreign private issuer with a two-tier board of directors, for purposes of paragraph (j) of this Item, the term board of directors means the supervisory or non-management board. In the case of a foreign private issuer meeting the requirements of § 240.10A-3(c)(3) of this chapter, for purposes of paragraph (j) of this Item, the term board of directors means the issuer's board of auditors (or similar body) or statutory auditors, as applicable.
(b) * * *
(101) * * *
(i) * * *
(C) * * *
(
(
(
15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s(a), 77z-3, 77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a-6(c), 80a-8, 80a-29, 80a-30, 80a-37, 7201
(b) * * *
(1) * * *
(iii) The disclosure set forth in paragraph (4) of this section, as applicable.
(4) An Interactive Data File must consist of the disclosure provided under 17 CFR 229 (Regulation S-K) and related provisions that is required to be tagged, including, as applicable:
(i) The cybersecurity information required by:
(A) Item 106 of Regulation S-K (§ 229.106 of this chapter);
(B) Item 407(j) of Regulation S-K (§ 229.407(j) of this chapter);
(C) Item 1.05 of Form 8-K (§ 249.308 of this chapter); and
(D) Item 16J of Form 20-F (§ 249.220f of this chapter).
15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 77sss, 78c, 78
(a) * * *
(3) * * *
(ii) Has filed in a timely manner all reports required to be filed during the twelve calendar months and any portion of a month immediately preceding the filing of the registration statement, other than a report that is required solely pursuant to Item 1.01, 1.02, 1.05, 2.03, 2.04, 2.05, 2.06, 4.02(a), 6.01, 6.03 or 6.05 of Form 8-K (§ 249.308 of this chapter). If the registrant has used (during the twelve calendar months and any portion of a month immediately preceding the filing of the registration statement) § 240.12b-25(b) of this chapter with respect to a report or a
The text of Form S-3 does not, and this amendment will not, appear in the Code of Federal Regulations.
3. * * *
(a) * * *
(b) has filed in a timely manner all reports required to be filed during the twelve calendar months and any portion of a month immediately preceding the filing of the registration statement, other than a report that is required solely pursuant to Item 1.01, 1.02, 1.04, 1.05, 2.03, 2.04, 2.05, 2.06, 4.02(a) or 5.02(e) of Form 8-K (§ 249.308 of this chapter). If the registrant has used (during the twelve calendar months and any portion of a month immediately preceding the filing of the registration statement) Rule 12b-25(b) (§ 240.12b-25(b) of this chapter) under the Exchange Act with respect to a report or a portion of a report, that report or portion thereof has actually been filed within the time period prescribed by that rule.
(a) * * *
(2) To the extent the depositor or any issuing entity previously established, directly or indirectly, by the depositor or any affiliate of the depositor (as defined in Item 1101 of Regulation AB (17 CFR 229.1101)) is or was at any time during the twelve calendar months and any portion of a month immediately preceding the filing of the registration statement on this Form subject to the requirements of section 12 or 15(d) of the Exchange Act (15 U.S.C. 78
The text of Form SF-3 does not, and this addition will not, appear in the Code of Federal Regulations.
(2) To the extent the depositor or any issuing entity previously established, directly or indirectly, by the depositor or any affiliate of the depositor (as defined in Item 1101 of Regulation AB (17 CFR 229.1101)) is or was at any time during the twelve calendar months and any portion of a month immediately preceding the filing of the registration statement on this Form subject to the requirements of section 12 or 15(d) of the Exchange Act (15 U.S.C. 78(l) or 78o(d)) with respect to a class of asset-backed securities involving the same asset class, such depositor and each such issuing entity must have filed all material required to be filed regarding such asset-backed securities pursuant to section 13 or 15(d) of the Exchange Act (15 U.S.C. 78m or 78o(d)) for such period (or such shorter period that each such entity was required to file such materials). In addition, such material must have been filed in a timely manner, other than a report that is required solely pursuant to Item 1.01, 1.02, 1.05, 2.03, 2.04, 2.05, 2.06, 4.02(a), 6.01, or 6.03 of Form 8-K (17 CFR 249.308). If Rule 12b-25(b) (17 CFR 240.12b-25(b)) under the Exchange Act was used during such period with respect to a report or a portion of a report, that report or portion thereof has actually been filed within the time period prescribed by that rule. Regarding an affiliated depositor that became an affiliate as a result of a business combination transaction during such period, the filing of any material prior to the business combination transaction relating to asset-backed securities of an issuing entity previously established, directly or indirectly, by such affiliated depositor is excluded from this section, provided such business combination transaction was not part of a plan or scheme to evade the requirements of the Securities Act or the Exchange Act. See the definition of “affiliate” in Securities Act Rule 405 (17 CFR 230.405).
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78
Section 240.15d-11 is also issued under secs. 3(a) and 306(a), Pub. L. 107-204, 116 Stat. 745.
(c) No failure to file a report on Form 8-K that is required solely pursuant to Item 1.01, 1.02, 1.05, 2.03, 2.04, 2.05, 2.06, 4.02(a), 5.02(e) or 6.03 of Form 8-K shall be deemed to be a violation of 15 U.S.C. 78j(b) and § 240.10b-5.
(c) No failure to file a report on Form 8-K that is required solely pursuant to Item 1.01, 1.02, 1.05, 2.03, 2.04, 2.05, 2.06, 4.02(a), 5.02(e) or 6.03 of Form 8-K shall be deemed to be a violation of 15 U.S.C. 78j(b) and § 240.10b-5.
15 U.S.C. 78a
Section 249.220f is also issued under secs. 3(a), 202, 208, 302, 306(a), 401(a), 401(b), 406 and 407, Pub. L. 107-204, 116 Stat. 745, and secs. 2 and 3, Pub. L. 116-222, 134 Stat. 1063.
Section 249.308 is also issued under 15 U.S.C. 80a-29 and 80a-37.
Section 249.308a is also issued under secs. 3(a) and 302, Pub. L. 107-204, 116 Stat. 745.
Section 249.310 is also issued under secs. 3(a), 202, 208, 302, 406 and 407, Pub. L. 107-204, 116 Stat. 745.
The text of Form 20-F does not, and these amendments will not, appear in the Code of Federal Regulations.
(1)
(2)
(3)
(b)
(1) Disclose in such detail as necessary to adequately describe the registrant's policies and procedures, if it has any, for the identification and management of risks from cybersecurity threats, including, but not limited to: Operational risk (
(i) The registrant has a cybersecurity risk assessment program, and if so, provide a description of such program;
(ii) The registrant engages assessors, consultants, auditors, or other third parties in connection with any cybersecurity risk assessment program;
(iii) The registrant has policies and procedures to oversee and identify the cybersecurity risks associated with its use of any third-party service provider, including, but not limited to, those providers that have access to or have information about the registrant's customer and employee data. If so, the registrant shall describe these policies and procedures, including whether and how cybersecurity considerations affect the selection and oversight of these providers and contractual and other mechanisms the company uses to mitigate cybersecurity risks related to these providers;
(iv) The registrant undertakes activities to prevent, detect, and minimize effects of cybersecurity incidents, and if so, provide a description of the types of activities undertaken;
(v) The registrant has business continuity, contingency, and recovery plans in the event of a cybersecurity incident;
(vi) Previous cybersecurity incidents informed changes in the registrant's governance, policies and procedures, or technologies;
(vii) Cybersecurity related risks and previous cybersecurity related incidents have affected or are reasonably likely to affect the registrant's strategy, business model, results of operations, or financial condition and if so, how; and
(viii) Cybersecurity risks are considered as part of the registrant's business strategy, financial planning, and capital allocation, and if so, how.
(c)
(1) Describe the board's oversight of cybersecurity risk, including the following as applicable:
(i) Whether the entire board, specific board members, or a board committee is responsible for the oversight of cybersecurity risks;
(ii) The processes by which the board is informed about cybersecurity risks, and the frequency of its discussions on this topic; and
(iii) Whether and how the board or board committee considers cybersecurity risks as part of its business strategy, risk management, and financial oversight.
(2) Describe management's role in assessing and managing cybersecurity related risks, as well as its role in implementing the registrant's cybersecurity policies, procedures, and strategies. The description should include, but not be limited to, the following information:
(i) Whether certain management positions or committees are responsible for measuring and managing cybersecurity risk, specifically the prevention, mitigation, detection, and remediation of cybersecurity incidents, and the relevant expertise of such persons or members in such detail as necessary to fully describe the nature of the expertise;
(ii) Whether the registrant has a designated chief information security officer, or someone in a comparable position, and if so, to whom that individual reports within the registrant's organizational chart, and the relevant expertise of any such person in such detail as necessary to fully describe the nature of the expertise;
(iii) The processes by which such persons or committees are informed about and monitor the prevention, mitigation, detection, and remediation of cybersecurity incidents; and
(iv) Whether and how frequently such persons or committees report to the board of directors or a committee of the board of directors on cybersecurity risk.
1. In the case of a foreign private issuer with a two-tier board of directors, for purposes of paragraph (c) of this Item, the term board of directors means the supervisory or non-management board. In the case of a foreign private issuer meeting the requirements of § 240.10A-3(c)(3) of this chapter, for purposes of paragraph (c) of this Item, the term board of directors means the issuer's board of auditors (or similar body) or statutory auditors, as applicable.
2. Relevant experience of management in Item 16J(c)(2)(i) and (ii) may include, for example: Prior work experience in cybersecurity; any relevant degrees or certifications; any knowledge, skills, or other background in cybersecurity.
(d)
(1) If the registrant has previously provided disclosure regarding one or more cybersecurity incidents pursuant to Form 6-K, the registrant must disclose any material changes, additions, or updates regarding such incident that occurred during the reporting period. The description should also include, as applicable, but not limited to, the following information:
(i) Any material effect of the incident on the registrant's operations and financial condition;
(ii) Any potential material future impacts on the registrant's operations and financial condition;
(iii) Whether the registrant has remediated or is currently remediating the incident; and
(iv) Any changes in the registrant's policies and procedures as a result of the cybersecurity incident, and how the incident may have informed such changes.
(2) The registrant should provide the following disclosure to the extent known to management regarding any previously undisclosed material cybersecurity incidents that have occurred during the reporting period, including a series of individually immaterial cybersecurity incidents that have become material in the aggregate:
(i) A general description of when the incidents were discovered and whether they are ongoing;
(ii) A brief description of the nature and scope of the incidents;
(iii) Whether any data was stolen or altered in connection with the incidents;
(iv) The effect of the incidents on the registrant's operations; and
(v) Whether the registrant has remediated or is currently remediating the incidents.
(e)
(1) If any member of the registrant's board of directors has expertise in cybersecurity, disclose the name(s) of any such director(s), and provide such detail as necessary to fully describe the nature of the expertise. In determining whether a director has expertise in cybersecurity, the registrant should consider, among other things:
(i) Whether the director has prior work experience in cybersecurity, including, for example, prior experience as an information security officer, security policy analyst, security auditor, security architect or engineer, security operations or incident response manager, or business continuity planner;
(ii) Whether the director has obtained a certification or degree in cybersecurity; and
(iii) Whether the director has knowledge, skills, or other background in cybersecurity, including, for example, in the areas of security policy and governance, risk management, security assessment, control evaluation, security architecture and engineering, security operations, incident handling, or business continuity planning.
(2)
(i) A person who is determined to have expertise in cybersecurity will not be deemed an expert for any purpose, including, without limitation, for purposes of Section 11 of the Securities Act (15 U.S.C. 77k), as a result of being designated or identified as a director with expertise in cybersecurity pursuant to this Item 16J.
(ii) The designation or identification of a person as having expertise in cybersecurity pursuant to this Item 16J does not impose on such person any duties, obligations or liability that are greater than the duties, obligations and liability imposed on such person as a member of the board of directors in the absence of such designation or identification.
(iii) The designation or identification of a person as having expertise in cybersecurity pursuant to this Item 16J does not affect the duties, obligations or liability of any other member of the board of directors.
(f)
The revision and addition read as follows:
The text of Form 8-K does not, and this addition will not, appear in the Code of Federal Regulations.
1. A report on this form is required to be filed or furnished, as applicable, upon the occurrence of any one or more of the events specified in the items in Sections 1 through 6 and 9 of this form. Unless otherwise specified, a report is to be filed or furnished within four business days after occurrence of the event. If the event occurs on a Saturday, Sunday or holiday on which the Commission is not open for business, then the four business day period shall begin to run on, and include, the first business day thereafter. A registrant either furnishing a report on this form under Item 7.01 (Regulation FD Disclosure) or electing to file a report on this form under Item 8.01 (Other Events) solely to satisfy its obligations under Regulation FD (17 CFR 243.100 and 243.101) must furnish such report or make such filing, as applicable, in accordance with the requirements of Rule 100(a) of Regulation FD (17 CFR 243.100(a)), including the deadline for furnishing or filing such report. A report pursuant to Item 5.08 is to be filed within four business days after the registrant determines the anticipated meeting date. A report pursuant to Item 1.05 is to be filed within four business days after the registrant determines that it has experienced a material cybersecurity incident.
(a) If the registrant experiences a cybersecurity incident that is determined by the registrant to be material, disclose the following information to the extent known to the registrant at the time of filing:
(1) When the incident was discovered and whether it is ongoing;
(2) A brief description of the nature and scope of the incident;
(3) Whether any data was stolen, altered, accessed, or used for any other unauthorized purpose;
(4) The effect of the incident on the registrant's operations; and
(5) Whether the registrant has remediated or is currently remediating the incident.
(b) A registrant shall provide the information required by this Item in an Interactive Data File in accordance with Rule 405 of Regulation S-T and the EDGAR Filer Manual.
1. A registrant shall make a materiality determination regarding a cybersecurity incident as soon as reasonably practicable after discovery of the incident.
2. Disclosure of any material changes or updates to information disclosed pursuant to this Item 1.05 is required pursuant to § 229.106(d) [Item 106(d) of Regulation S-K] in the registrant's quarterly report filed with the Commission on Form 10-Q (17 CFR 249.308a) or annual report filed with the Commission on Form 10-K (17 CFR 249.310) for the period (the registrant's fourth fiscal quarter in the case of an annual report) in which the change, addition, or update occurred.
3. The definition of the term “cybersecurity incident” in § 229.106(a) [Item 106(a) of Regulation S-K] shall apply to this Item.
The text of Form 10-Q does not, and these amendments will not, appear in the Code of Federal Regulations.
(b) Furnish the information required by Item 106(d) of Regulation S-K (§ 229.106(d) of this chapter).
The addition and revision read as follows:
The text of Form 10-K does not, and these amendments will not, appear in the Code of Federal Regulations.
(a) Furnish the information required by Item 106 of Regulation S-K (§ 229.106 of this chapter).
(b) An asset-backed issuer as defined in Item 1101 of Regulation AB (§ 229.1101 of this chapter) that does not have any executive officers or directors may omit the information required by Item 106(c) of Regulation S-K (§ 229.106(c) of this chapter).
By the Commission.