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U.S. Citizenship and Immigration Services, Department of Homeland Security.
Final rule.
The Department of Homeland Security (DHS) is amending DHS premium processing regulations to codify statutory changes made by the Continuing Appropriations Act, 2021 and Other Extensions Act (Continuing Appropriations Act). The Continuing Appropriations Act included the Emergency Stopgap USCIS Stabilization Act (USCIS Stabilization Act), which amended the Immigration and Nationality Act (INA) by modifying U.S. Citizenship and Immigration Services' (USCIS) authority to provide premium processing services and to establish and collect premium processing fees for those services. This rule amends DHS premium processing regulations by updating the regulations to include the fees established by the USCIS Stabilization Act for immigration benefit requests that were designated for premium processing on August 1, 2020, and establishing new fees and processing timeframes consistent with section 4102(b) of the USCIS Stabilization Act.
All comments on the information collection must be submitted through the Federal eRulemaking Portal:
Connie L. Nolan, Acting Associate Director, Service Center Operations, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240–721–3000.
The purpose of this rulemaking is to amend the DHS premium processing regulations to codify those fees set by the USCIS Stabilization Act under section 286(u)(3)(A) of the INA, 8 U.S.C. 1356(u)(3)(A), and to establish new fees and processing timeframes for new immigration benefit requests, consistent with the conditions and eligibility requirements set forth by section 4102(b)(1) of the USCIS Stabilization Act.
In 2000, Congress added new section 286(u) to the INA, 8 U.S.C. 1356(u), to permit the former Immigration and Naturalization Service to designate certain employment-based immigration benefit requests for premium processing subject to an additional fee.
On October 1, 2020, the Continuing Appropriations Act, which included the USCIS Stabilization Act, was signed into law. The USCIS Stabilization Act set new fees for premium processing of immigration benefit requests that had been designated for premium processing as of August 1, 2020, and expanded DHS authority to establish and collect new premium processing fees, and to use those additional funds for expanded purposes.
The Secretary of Homeland Security's (Secretary) authority for regulatory amendments is found in various provisions of the INA, 8 U.S.C. 1101,
The USCIS Stabilization Act increased the fees for premium processing services already available, sets fees for and expands premium processing to additional immigration benefits requests, and provides specific purposes for the premium processing fees.
This expansion of electronic filing to application and benefit requests is a prerequisite so that the premium processing form, Form I–907 (which is not currently available electronically) could be filed electronically with the benefit request form for which premium processing is being requested. USCIS plans to encumber additional IT resources needed to make the I–907 available for electronic filing independent of this rule. USCIS intends to implement expansion of premium processing availability of Forms I–539, I–765 and I–140 as soon as feasible. DHS plans on a phased implementation strategy to allow current premium processing revenue to pay for development and implementation costs associated with expanding availability of the service. DHS plans to implement expansion for certain categories of Forms I–539, I–765 and both of the new I–140 classifications in FY 2022. DHS estimates that it will not be able to expand premium processing to the additional categories of Forms I–539 and I–765 until FY 2025 due to the possibility that premium processing revenues do not yet exist to cover any potential costs associated with expanding premium processing to these additional categories without adversely affecting the processing times of other immigration benefit requests, as directed by Congress. This is explained in greater detail in the “Government Costs” section below. The projected implementation plan will allow current premium processing revenue to cover potential costs from the expedited processing of a large volume of new requests.
For the 10-year implementation period of the rule if year one is FY 2021, DHS estimates the annualized cost to be $13 million discounted at 3 percent and $12 million discounted at 7 percent. These costs are from the opportunity costs of time that newly eligible populations of Forms I–140, I–539, and I–765 will incur to request premium processing.
For the 10-year implementation period of the rule, DHS estimates the annualized transfer payments from the
This final rule benefits petitioners of Form I–140 (EB–1, multinational executives and managers and EB–2, members of professions with advanced degrees or exceptional ability seeking a national interest waiver) who were previously ineligible for premium processing, but will now be eligible following implementation of this final rule to request expedited review of their petitions. As a result, an adjudicative action would be taken more quickly. This change benefits businesses that previously would have had to wait longer to receive adjudicative action (such as a notice of approval) for an employee. It also benefits applicants of Form I–539 who will have the option to receive a decision on their request for a change of status or extension of stay sooner than before, which may alleviate concern about lapses in their nonimmigrant status. Applicants of Form I–765 would benefit through receipt of an adjudicative decision in a specified timeframe making those applicants eligible to work legally in the United States sooner than they would previously.
This rule amends DHS premium processing regulations to codify those fees set by the USCIS Stabilization Act in section 286(u)(3)(A) of the INA, 8 U.S.C. 1356(u)(3)(A), as well as the preexisting timeframes for those immigration benefit requests that had been designated for premium processing as of August 1, 2020, and to establish new fees and processing timeframes for new immigration benefit requests, consistent with the conditions and eligibility requirements set forth by section 4102(b)(1) of the USCIS Stabilization Act. This rule further amends DHS premium processing regulations to codify the USCIS Stabilization Act's changes to the process for adjusting premium processing fees at section 286(u)(3)(C) of the INA, 8 U.S.C. 1356(u)(3)(C), according to which such adjustments are permitted on a biennial basis consistent with certain changes to the Consumer Price Index for All Urban Consumers (CPI–U).
On November 14, 2019, DHS published the proposed rule, “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements,” in the
On September 29, 2020, the U.S. District Court for the Northern District of California granted a motion for a preliminary injunction and stay under 5 U.S.C. 705 of the 2020 Fee Schedule Final Rule in its entirety.
Litigation in
USCIS continued to accept the premium processing fees that were in place before October 2, 2020. On October 19, 2020, pursuant to the passage of the USCIS Stabilization Act, USCIS increased those premium processing fees that were in place at that time.
Although DHS is enjoined from implementing or enforcing the 2020 Fee Schedule Final Rule and the rule has been stayed, the regulatory amendments established by the 2020 Fee Schedule Final Rule were incorporated into the Code of Federal Regulations (CFR) on October 2, 2020, by operation of the rule's publication in the
Because the entirety of 8 CFR part 106, including 8 CFR 106.4, is enjoined and stayed, and the previous DHS premium processing regulations at 8 CFR 103.7(b)(1)(i)(SS) and (e) were removed, DHS will amend 8 CFR 106.4 by revising it in its entirety. This will avoid any confusion as to which DHS premium processing regulations are current and make it clear to the public that the DHS premium processing regulations are wholly contained in 8 CFR 106.4, available as a current reference, and being followed by DHS. Legal citations to the changes being made to DHS premium processing regulations in this preamble will cite to “8 CFR 106.4” to comport with the current location of the regulations in the CFR. However, because 8 CFR part 106 has been enjoined and stayed, has not been implemented, and is not being administered by USCIS, the standard of citing to the CFR print edition date may be inaccurate. Therefore, in this rule, when DHS references the no longer existing (but still being followed) 8 CFR 103.7(b)(1)(i)(SS) and (e), DHS will refer to these regulations as they appeared in the CFR on October 1, 2020, and denote by reference to that date in any legal citation (
The District of Columbia Appropriations Act of 2001 added section 286(u) to the INA, 8 U.S.C. 1356(u), authorizing the collection of a $1,000 “premium fee,” in addition to the regular filing fee, from persons seeking expedited processing of eligible employment-based petitions and applications.
The INA as amended by the District of Columbia Appropriations Act of 2001 provided that premium processing revenue shall be used to fund the cost of offering the service, as well as the cost of infrastructure improvements in adjudications and customer service processes. The INA as amended by the District of Columbia Appropriations Act of 2001 further provided USCIS with explicit authority to adjust the premium processing fee for inflation based on the CPI–U.
On October 1, 2020, the Continuing Appropriations Act, 2021 and Other Extensions Act was signed into law. That enactment contains the USCIS Stabilization Act.
On October 16, 2020, USCIS announced it would increase the fees for premium processing, as required by the USCIS Stabilization Act, effective October 19, 2020.
Through this rulemaking, DHS is amending DHS premium processing regulations to codify those fees set by the USCIS Stabilization Act through enactment of section 286(u)(3)(A) of the INA, 8 U.S.C. 1356(u)(3)(A), as well as the preexisting timeframes for those immigration benefit requests that were designated for premium processing as of August 1, 2020, and to establish new fees and processing timeframes for new immigration benefit requests, consistent with the conditions and eligibility requirements set forth by section 4102(b)(1) of the USCIS Stabilization Act. DHS is also amending DHS premium processing regulations to codify the USCIS Stabilization Act's changes made at section 286(u)(3)(C) of the INA, 8 U.S.C. 1356(u)(3)(C), to the process for adjusting premium processing fees, according to which such adjustments are permitted on a biennial basis consistent with certain changes to the CPI–U.
Prior to the USCIS Stabilization Act, premium processing provided expedited processing for certain designated classifications that are requested on Form I–129 and Form I–140.
While leaving in place the general concept and framework for premium processing that existed prior to its enactment, the USCIS Stabilization Act made significant changes to the INA, amending significant aspects of premium processing that had previously been established by regulation. While maintaining DHS's authority to set reasonable conditions or limitations on premium processing, the USCIS Stabilization Act expanded the immigration benefit types that can be designated for premium processing, to wit: applications to change or extend nonimmigrant status and applications for employment authorization (generally on Form I–539, Application to Extend/Change Nonimmigrant Status, and Form I–765, Application for Employment Authorization, respectively) as well as any other immigration benefit type that DHS deems appropriate for premium processing.
• Form I–140 requesting EB–1 immigrant classification as a multinational executive or manager or EB–2 immigrant classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW). Fee: $2,500. Timeframe: 45 days;
• Form I–539 requesting a change of status to F–1, F–2, J–1, J–2, M–1, or M–2 nonimmigrant status or a change of status to or extension of stay in E–1, E–2, E–3, H–4, L–2, O–3, P–4, or R–2 nonimmigrant status. Fee: $1,750. Timeframe: 30 days; and
• Form I–765 requesting employment authorization. Fee: $1,500. Timeframe: 30 days.
The primary purpose of this rule is to add these specific benefit types as those designated for premium processing in DHS regulations with both a premium processing fee and required processing timeframe, consistent with the exemption from 5 U.S.C. 553, while further reconciling the premium processing regulations with the other changes made by the USCIS Stabilization Act. In the Executive Orders 12866 and 13563 section of this rule, DHS estimates the number of newly eligible I–140 petitioners, I–539 applicants, or I–765 applicants that may choose to submit a premium processing request. However, as further discussed in section IV.B of this rule, it is difficult for DHS to determine the amount of time and resources specifically needed to accommodate these new requests for premium processing. Therefore, DHS has set the premium processing fees and timeframes for the newly eligible immigration benefit requests to be consistent with the fees and maximum processing timeframes set forth by Congress in section 4102(b)(1) of the USCIS Stabilization Act. As provided by section 4102(b)(2) of the USCIS Stabilization Act and as codified in the new 8 CFR 106.4(f)(2)(ii), the premium processing timeframe for the immigration benefit requests identified in section 4102(b) of the USCIS Stabilization Act will commence on the date that all prerequisites for
DHS is not codifying a definition of the phrase “prerequisites for adjudication” in this rule and will determine when the timeframe begins based on the benefit request and what is required to fully adjudicate it, consistent with otherwise applicable regulations. USCIS has been unable to offer premium or expedited services for many of its adjudication and naturalization services because of the difficulty in determining the appropriate fee, staffing levels, time period for adjudication, and other parameters. The USCIS Stabilization Act recognized that it is the requestor's responsibility to provide a complete request before premium processing can begin and that there is inherent ambiguity in defining the appropriate timeframe. DHS interprets “prerequisites for adjudication” in section 4102(b) to at least require a complete, fully executed form as prescribed and required by 8 CFR 1.2 and 8 CFR 103.2(a)(7), completed in accordance with the form instructions as required by 8 CFR 103.2(a)(1), and other filing requirements as may be provided in the applicable regulations for the specific benefit request, including receiving all necessary evidence and information from interviews, biometrics submission, and background checks. USCIS may specify additional prerequisites that determine when the timeframe begins when it announces those requests for which premium processing may be requested and any conditions that may apply under 8 CFR 106.4(g).
The USCIS Stabilization Act also established distinct premium processing fees and the authority to establish distinct premium processing timeframes based upon the specific immigration benefit request.
The USCIS Stabilization Act also amended the INA by adding section 286(u)(3)(C), 8 U.S.C. 1356(u)(3)(C), which adjusts the frequency and the manner in which USCIS may periodically adjust the fees for premium processing.
The premium processing regulations require USCIS to communicate which immigrant benefit requests are available for premium processing, the dates upon which availability commences and ends and any conditions that may apply to seeking a request for premium processing.
Consistent with the USCIS Stabilization Act, new 8 CFR 106.4(g) further clarifies that USCIS may suspend the availability of premium processing for certain immigration benefit requests if circumstances prevent the agency from being able to complete a significant number of such requests within the applicable processing timeframe.
Relatedly, the USCIS Stabilization Act requires that when DHS implements the availability of premium processing, or expands premium processing to new immigration benefit request types, DHS must ensure that such implementation or expansion does not result in an
DHS generally cannot reallocate staff to adjudicate these immigration benefit requests without adversely affecting processing times for other non-premium processing related immigration benefit requests. Therefore, DHS must hire and train new staff with revenue from current premium processing requests in order to expand expedited adjudication of premium processing consistent with the statutory requirement. Delayed implementation will allow USCIS to maintain a minimum premium revenue carryover balance. USCIS will use the carryover balance to ensure fiscal stability and fund infrastructure and process improvements, such as the expansion of premium services. For these reasons and circumstances, DHS will suspend the availability of premium processing for those immigration benefit requests newly designated for premium processing by this rule and will not make those immigration benefit requests newly designated by this rule immediately available for premium processing upon the effective date of this rule.
In the 2020 Fee Schedule NPRM, DHS changed the way it calculated the 15-day premium processing clock from counting calendar days to counting business days.
In this rule, DHS is removing any reference to calculating premium processing timeframes in business days that were finalized in the 2020 Fee Schedule Final Rule. Following issuance of this rule, DHS intends to continue to calculate premium processing timeframes by counting calendar days. As previously discussed, the 2020 Fee Schedule Final Rule is enjoined and stayed, and the regulations as codified in 8 CFR 106.4 are not being administered by USCIS.
Because the litigation in
The Administrative Procedure Act (APA) generally requires agencies to issue a proposed rule before issuing a final rule, subject to certain exceptions.
The USCIS Stabilization Act has exempted DHS from the requirements of 5 U.S.C. 553 when USCIS establishes fees that are consistent with section 4102(b) of the USCIS Stabilization Act. This exemption allows DHS to establish fees consistent with section 4102(b) of the USCIS Stabilization Act by final rule and does not require notice-and-comment rulemaking.
The USCIS Stabilization Act made statutory changes to section 286(u) of the INA, 8 U.S.C. 1356(u).
This rule is also exempt, in its entirety, from the notice-and-comment requirements of 5 U.S.C. 553, because the rule's provisions are fundamentally procedural in nature.
Executive Order (E.O.) 12866 and E.O. 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and to the extent permitted by law, to proceed if the benefits justify the costs. They also direct agencies to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). In particular, E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Information and Regulatory Affairs (OIRA), within the Office of Management and Budget (OMB), has designated this final rule an economically significant regulatory action under sec. 3(f)(1) of E.O. 12866. Accordingly, OIRA has reviewed this regulation.
The Continuing Appropriations Act, 2021 and Other Extensions Act, signed into law on October 1, 2020, contained the Emergency Stopgap USCIS Stabilization Act, which set new fees for premium processing of immigration benefit requests that had been designated for premium processing as of August 1, 2020, and expanded USCIS authority to establish and collect new premium processing fees and to use those additional funds for expanded purposes. The purpose of this rulemaking is to amend DHS premium processing regulations for previously designated benefit requests to codify those fees set by the USCIS Stabilization Act in section 286(u)(3)(A) of the INA, 8 U.S.C. 1356(u)(3)(A), and to establish new immigration benefit requests designated for premium processing under section 286(u)(3)(B) of the INA, 8 U.S.C. 1356(u)(3)(B), consistent with those conditions and eligibility requirements set forth by section 4102(b)(1) of the USCIS Stabilization Act.
While DHS is able to assess the costs and benefits of premium processing for the forms and classifications for which it is currently available, it is more difficult to assess when DHS will be able to expand the availability of premium processing to all of the newly designated immigration benefit request types. Due to the statutory requirement that the expansion of availability of premium processing should not result in increased processing times for immigration benefit requests not designated for premium processing or an increase in regular processing of immigration benefit requests so designated, DHS must first raise sufficient funds to ensure it has the staffing and information technology (IT) resources to expand premium processing availability to avoid such an increase to any processing times. The current (non-premium) processing times for the newly designated immigration benefit requests exceed the proposed premium processing timeframes by many months, as expected.
DHS generally is unable to reallocate staff to adjudicate these immigration benefit requests without adversely affecting processing times for other immigration benefit requests. Therefore, DHS must hire and train new staff with revenue from current premium processing requests in order to expand expedited adjudication of premium processing consistent with the statutory requirement that other processing times not be adversely affected.
Furthermore, Section 3401 of the Stabilization Act authorizes USCIS to use fee revenue for the following, competing purposes: To provide premium processing services to requestors, to make infrastructure improvements in adjudications processes and the provision of information and services to immigration and naturalization benefit requestors, to respond to adjudication demands, including by reducing the number of pending immigration and naturalization benefit requests, and to otherwise offset the cost of providing adjudication and naturalization services. Prior to expansion, any revenues in excess of costs generated by premium processing will be used to support other authorized uses. Section 3402 of the Stabilization Act additionally directs USCIS to provide a 5-year plan for improvements in electronic filing, electronic payment, and electronic correspondence resulting in improved processing times for all immigration and naturalization benefit requests. In accordance with these authorizations and directives, DHS has prioritized and is in the process of expanding electronic filing for all applications and benefit requests. Some of the immigration benefit requests newly designated for premium processing are already filed electronically.
The expansion of electronic filing to application and benefit requests is a prerequisite so that the premium processing form, Form I–907, (which is not currently available electronically) could be filed electronically with the benefit request form for which premium processing is being requested. USCIS plans to encumber additional IT resources needed to make the I–907 available for electronic filing independent of this rule. USCIS intends to implement expansion of premium processing availability of Forms I–539, I–765 and I–140 as soon as feasible.
For the 10-year implementation period of the rule if year one is FY 2021, DHS estimates the annualized cost to be $13 million discounted at 3 percent and $12 million discounted at 7 percent. These costs are from the opportunity costs of time that newly eligible populations of Forms I–140, I–539, and I–765 will incur to request premium processing.
For the 10-year implementation period of the rule, DHS estimates the annualized transfer payments from the Form I–129 and Form I–140 fee-paying population, and from newly eligible classifications of Form I–140 petitioners, Form I–539 applicants and Form I–765 applicants to DHS to be $743 million discounted at 3 percent and $729 million discounted at 7 percent due to the increase in filing fees.
This final rule benefits petitioners of Form I–140 (EB–1, multinational executives and managers and EB–2, members of professions with advanced degrees or exceptional ability seeking a national interest waiver) who were previously ineligible for premium processing to receive a quicker adjudication. This change benefits businesses that previously would have had to wait longer to receive a decision (such as a notice of approval) for an employee. It also benefits applicants of Form I–539 who will have the option to receive a decision on their request for a change of status or extension of stay sooner than before, which may alleviate concern about lapses in their nonimmigrant status. Applicants of Form I–765 would benefit through receipt of an adjudicative decision in a specified timeframe making those applicants eligible to work legally in the United States sooner than they would have previously.
Table 1 provides a more detailed summary of the final rule provisions and their impacts.
In addition to the impacts summarized above, and as required by OMB Circular A–4, Table 2 presents the prepared accounting statement showing the costs and benefits to each individual affected by this final rule.
On October 1, 2020, the Continuing Appropriations Act, 2021 and Other Extensions Act, which contained the USCIS Stabilization Act, was signed into law.
Through this rulemaking, DHS is amending DHS premium processing regulations to codify those fees set by the USCIS Stabilization Act in section 286(u)(3)(A) of the INA, 8 U.S.C. 1356(u)(3)(A), and to establish new immigration benefit requests designated for premium processing under section 286(u)(3)(B) of the INA, 8 U.S.C. 1356(u)(3)(B), consistent with those conditions and eligibility requirements set forth by section 4102(b)(1) of the USCIS Stabilization Act.
USCIS' premium processing service currently allows petitioners to pay an additional filing fee to expedite the adjudication of certain employment-based immigration benefit requests. The Continuing Appropriations Act, which included the USCIS Stabilization Act, set new fees for the premium processing of immigration benefit requests designated for premium processing as of August 1, 2020, and provided authority to establish new immigration benefit requests designated for premium processing and the associated fees.
Table 3 shows the estimated total receipts received and refunds issued by USCIS for Form I–907 from fiscal year (“FY”) 2017 through FY 2021. During this period, total annual receipts for Form I–907 ranged from a low of 307,981 in FY 2017 to a high of 412,836 in FY 2019. Based on a 5-year annual average, DHS estimates the annual receipts for Form I–907 to be 365,521. In addition, the total number of refunds issued for Form I–907 decreased to 151 in FY 2021 from a high of 1,055 in FY 2017, with a 5-year annual average of 457 Form I–907 issued refunds. USCIS presents data on refunds issued by USCIS because USCIS currently guarantees processing for these requests within 15 days to petitioners who chose to pay the additional fee to request this service. The 15-day period generally begins when USCIS properly receives the correct version of Form I–907, Request for Premium Processing Service, with fee, at the correct filing address. Within the 15-day period, USCIS will issue either an approval notice, denial notice, notice of intent to deny, or request for evidence, or open an investigation for fraud or misrepresentation. If the benefit request requires the submission of additional evidence or a response to a notice of intent to deny, a new 15-day period begins when USCIS receives a complete response to the request for evidence or notice of intent to deny. The premium processing fee is required to be paid in addition to, and in a separate remittance from, other filing fees, and cannot be waived. If USCIS did not take any of the above actions within the 15-day processing service timeframe, USCIS refunds the premium processing fee.
This rule allows USCIS up to 45-days for premium processing of Form I–140 requesting EB–1 immigrant classification as a multinational executive or manager or EB–2 immigrant classification as member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW) and allows USCIS up to 30 days for premium processing of Form I–539 and Form I–765. This change from the standard premium processing timeframe of 15 days reduces the risk that expansion of premium processing to new populations would result in a disproportionate increase in refunds beyond the levels shown in Table 3. This expansion in timeframe will not result in longer wait times for individuals requesting premium processing since the affected population is only a relatively small percentage of people whose adjudication would have required more time (0.1-percent) and therefore would have been refunded. As a result of this final rule, USCIS refunds will not increase for individuals requesting premium processing.
Table 4 shows the percentage of the eligible Form I–140 petitioners who chose to submit a premium processing request from FY 2017 through FY 2021. The following classifications are currently designated for premium processing: EB–1 Aliens of extraordinary ability, EB–1 Outstanding professors and researchers, EB–2 Members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver, EB–3 Skilled workers, EB–3 Professionals, and EB–3 Workers other than skilled workers and professionals.
Table 5 shows the percentage of the eligible Form I–129 petitioners who chose to submit a premium processing request along with their Form I–129 petitions from FY 2017 through FY 2021. The 5-year annual average percentage of eligible Form I–129 petitioners who choose to submit a premium processing request was 53-percent.
To estimate the probability that an eligible petitioner may choose to request premium processing, DHS computes a ratio of the 5-year annual average number of requests to the 5-year annual average number of eligible petitioners. Table 6 shows that of those currently eligible for premium processing, 53-percent chose to submit a premium processing request. For purposes of this analysis, DHS assumes that demand rate will carry forward and will use this percentage to estimate the possible adoption volumes of the newly eligible Form I–539 and I–765 applicants.
Currently, petitioners requesting certain benefits on Form I–129, Petition for a Nonimmigrant Worker, are eligible to also submit a request for premium processing with their immigration benefit request. Table 7 shows the population of petitioners who submitted Form I–907 with Form I–129
During this period, total annual receipts for Form I–907 filed with all other available Form I–129 classifications (E–1, E–2, E–3, H–1B, H–3, L–1A, L–1B, LZ, O–1, O–2, P–1, P–1S, P–2, P–2S, P–3, P–3S, Q–1, TN–1, and TN–2) ranged from a low of 227,289 in FY 2017 to a high of 322,656 in FY 2019. Based on a 5-year annual average, DHS estimates the annual receipts for Form I–907 associated with all other Forms I–129 to be 287,404, which represents 78.6-percent of all filed Form I–907 receipts.
On October 1, 2020, the Continuing Appropriations Act, which included the USCIS Stabilization Act, was signed into law. The USCIS Stabilization Act set new fees for premium processing of immigration benefit requests that had been designated for premium processing as of August 1, 2020, and expanded DHS authority to establish and collect new premium processing fees, and to use those additional funds for expanded purposes.
The fee for premium processing for those petitioners requesting H–2B or R–1 nonimmigrant status was increased from $1,440 to $1,500, an increase of $60, which represents a 4.2-percent increase.
DHS estimates the new premium processing fees associated with Form I–129 requests for H–2B or R–1 nonimmigrant status will result in $572,040
Table 10 shows the population of petitioners who submitted Form I–907, Request for Premium Processing Service, with Form I–140, Immigrant Petition for Alien Workers,
Table 10 also shows the number of Form I–140 receipts filed with Form G–28, Notice of Entry of Appearance as Attorney or Accredited Representative (Form G–28) from FY 2017 through FY 2021. The number of Form G–28 submissions allows USCIS to estimate the cost of time for a petitioner or representative to file each form, which is addressed in the next section of this analysis. During FY 2017 through FY 2021, total annual receipts from Form I–907 filed with Form I–140 ranged from a low of 57,969 in FY 2020 to a high of 88,109 in FY 2021. Based on a 5-year annual average, DHS estimates the annual receipts of Form I–907 filed with Form I–140 to be 71,569.
Effective October 1, 2020, the USCIS Stabilization Act increased the fee for premium processing of all designated classifications (Classifications: E11, E12, E21 (non-NIW), E31, E32, EW3) available with Form I–140, from $1,440 to $2,500, an increase of $1,060.
Using the population from FY 2021 of 97,275 applicants, DHS estimates that as a result of the fee increase the additional premium processing annual transfer payments from the Form I–140 fee-paying population to DHS was $103,111,500 in FY 2021, shown in Table 11. Consistent with demand for Form I–129 premium processing, DHS observed an increase in premium processing requests associated with Form I–140 in FY 2021 following implementation of the fee increase. This corroborates the agency's experience that requestors are insensitive to the price increases effected by this rule, and will continue to file for premium processing.
Using the historical 5-year annual average from FY 2017 through FY 2021 of 78,182 applicants, DHS estimates that as a result of the increase in filing fees for premium processing the additional annual transfer payments from the Form I–140 fee-paying population to DHS will be $82,872,920 a projected in FY 2022 through FY 2030 shown in Table 12. From a societal perspective, the opportunity cost measures represent social costs, while the filing fees represent transfers from applicants to the government.
This final rule allows USCIS 45-days for premium processing of currently eligible Form I–140 requests, instead of the existing 15-day timeframe. While USCIS is unable to determine how many of the 79 Form I–140 premium processing refunds issued under the 15-day timeframe (Table 3) would be able to have their Request for Premium Processing completed as a result of this change, this would result in a reduction of the expected transfer of refunded revenues from the government, back to those petitioners.
The following classifications are currently designated for premium processing: EB–1 Aliens of extraordinary ability, EB–1 Outstanding professors and researchers, EB–2 Members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver, EB–3 Skilled workers, EB–3 Professionals, EB–3 Workers other than skilled workers and professionals.
Table 13 shows the total receipts received for Form I–140 EB–1,
DHS recognizes that not all eligible petitioners will submit a premium processing request, and therefore, DHS uses the current percentage of premium processing requests compared to the number of total receipts from the currently eligible population, 52- percent, as a proxy of the number of newly eligible petitioners that will submit a premium processing request with Form I–140. DHS estimates 37,771 petitioners (52 percent of the newly eligible population of 72,637) would submit a premium processing request with their I–140 petition, as shown in Table 14.
Petitioners who file Form I–140 with a Form G–28 would use a lawyer or accredited representative to complete any related immigration benefit requests or forms. Based on the data from Table 10, 92 percent of Form I–140 petitions were filed with a Form G–28, while the remaining 8 percent of Form I–140 petitions are filed without a Form G–28.
In order to estimate the opportunity costs of time for completing and filing Form I–907, DHS assumes that a petitioner will use a human resources (HR) specialist, an in-house lawyer, or an outsourced lawyer to prepare Form I–907 petitions.
DHS accounts for worker benefits when estimating the total costs of compensation by calculating a benefits-to-wage multiplier using the U.S. Department of Labor, BLS report detailing the average employer costs for employee compensation for all civilian workers in major occupational groups and industries. DHS estimates that the benefits-to-wage multiplier is 1.45 and, therefore, is able to estimate the full opportunity cost per petitioner, including employee wages and salaries and the full cost of benefits such as paid leave, insurance, retirement, etc.
The DHS ICE rule, “Final Small Entity Impact Analysis: Safe-Harbor Procedures for Employers Who Receive a No-Match Letter” at G–4 (Aug. 25, 2008), available at
Also, the analysis for a DHS ICE rule, “Final Small Entity Impact Analysis: Safe-Harbor Procedures for Employers Who Receive a No-Match Letter” at G–4 (Aug. 25, 2008), available at
To estimate the opportunity cost of time to complete and file Form I–907, DHS applies the estimated time burden (0.58 hours) to the newly eligible population and compensation rates of those who may file with or without a lawyer.
To estimate the remaining opportunity cost of time for a HR specialist filing Form I–907 without a lawyer, DHS applies the estimated public reporting time burden (0.58 hours) to the compensation rate of an HR specialist. For those newly eligible, shown in Table 17, DHS estimates the total annual opportunity cost of time to HR specialists completing and filing Form I–907 requests will be approximately $84,834.
The costs to the petitioners newly eligible to file Form I–907 with a Form I–140 as a result of this rule is estimated to be $2,934,568, as shown Table 18. From a societal perspective, the opportunity cost measures represent social costs, while the filing fees represent transfers from applicants to the government.
In Table 19, DHS estimates that as a result of the increase in filing fees for Form I–907, Request for Premium Processing Service, the additional annual transfer payments from the new Form I–140 fee-paying population to DHS will be $94,427,500.
In this final rule, DHS is now adding Form I–539, Application to Extend/Change Nonimmigrant Status, to the types of immigration benefit requests that are eligible for premium processing. While Form I–539 is used for many nonimmigrants categories who may apply for an extension of stay or a change of status, premium processing will now be extended to Form I–539 requestors changing status to F–1, F–2, J–1, J–2, M–1, or M–2 nonimmigrant status or a change of status or extension of stay in E–1, E–2, E–3, H–4, L–2, O–3, P–4, or R–2 nonimmigrant status.
Table 20 shows the total receipts received for Form I–539 for FY 2017 through FY 2021 and the number of Form I–539 receipts filed with an attorney or accredited representative using Form G–28. The number of Form G–28 submissions allows USCIS to estimate the numbers of forms that are filed by an attorney or accredited representative. This in turn, allows USCIS to estimate the opportunity cost of time depending on the type of filer. During this period, total annual receipts for Form I–539 ranged from a low of 227,120 in FY 2019 to a high of 441,920 in FY 2020. Based on a 5-year annual average, DHS estimates the annual receipts for Form I–539 to be 284,345, with 49 percent of Forms I–539 being filed by an attorney or accredited representative.
DHS does not know how many newly eligible Form I–539 applicants will choose to submit a premium processing request since this population has not previously been eligible to file for premium processing. DHS recognizes that not all eligible petitioners will submit a premium processing request. Table 21 shows the 5-year annual average for the classifications that are now eligible for premium processing along with the number of forms that are filed with a Form G–28 for FY 2017 through FY 2021. Overall, 49 percent
Table 21 shows that of the 138,557 newly eligible applicants, DHS calculated that 19,342 would be applying for F–1, F–2, J–1, J–2, M–1, M–2 classifications (14%), and the remaining 119,215 would be applying for E–1, E–2, E–3, L–2, H–4, O–3, P–4, R–2 classifications (86%). Since Form I–539 applicants have never been eligible to request premium processing, DHS has no historical data to determine how many of the newly eligible population
Of the 19,342 newly eligible applicants for F–1, F–2, J–1, J–2, M–1, M–2 classifications, DHS estimates that 10,251 applicants (53 percent of the eligible population) may submit a premium processing request along with their Form I–539 application. Of the 119,215 newly eligible applicants for E–1, E–2, E–3, L–2, H–4, O–3, P–4, R–2 classifications, DHS estimates that 63,184 applicants (53 percent of the eligible population) may submit a premium processing request along with their Form I–539 application as shown in Table 22. DHS is planning to begin accepting premium processing requests from F–1, F–2, J–1, J–2, M–1, M–2 classifications beginning in FY 2022. DHS anticipates accepting premium processing requests from E–1, E–2, E–3, L–2, H–4, O–3, P–4, R–2 classifications by FY 2025.
In order to estimate the opportunity costs of time for completing and filing Form I–907, DHS assumes that an applicant will use an in-house or outsourced lawyer or will prepare Form I–907 request themselves. Many of the individuals using Form I–539 F–1, F–2, J–1, J–2, M–1, M–2 classifications may file forms on their own because they are students, professors, research scholars, trainees or interns, teachers, camp counselors, au pairs, and summer work travel exchange visitors, and may not choose to hire a lawyer.
To estimate the new opportunity cost of time for Form I–539 applicants to file Form I–907, DHS applies the estimated time burden (0.58 hours)
To estimate the new opportunity costs of time for students and exchange visitors applying for F, J or M classifications, USCIS uses an average total rate of compensation based on the effective minimum wage. DHS assumes that the following classifications: F–1, academic student, J–1, exchange visitor, J–2 spouse or child of J–1 exchange
DHS accounts for worker benefits when estimating the total costs of compensation by calculating a benefits-to-wage multiplier using the U.S. Department of Labor, BLS report detailing the average employer costs for employee compensation for all civilian workers in major occupational groups and industries. DHS estimates that the benefits-to-wage multiplier is 1.45 and, therefore, is able to estimate the full opportunity cost per petitioner, including employee wages and salaries and the full cost of benefits such as paid leave, insurance, retirement, and other benefits.
To estimate the new opportunity costs of time for a Form I–539 applicant filing Form I–907 to request premium processing, DHS applies the estimated public reporting time burden (0.58 hours) to the newly eligible population and compensation rate of the applicant. Therefore, for those newly eligible, as shown in Table 24, DHS estimates the total annual opportunity cost of time to F–1, F–2, J–1, J–2, M–1, M–2 classification applicants completing and filing Form I–907 requests is $74,895 and the opportunity cost of time for E–1, E–2, E–3, L–2, H–4, O–3, P–4, R–2 classification applicants is $348,054. DHS estimates the total opportunity cost of time for the affected population of Form I–539 applicants filing Form I–907 of $422,949 as shown in Table 24.
DHS estimates the total additional annual cost beginning in FY 2022 to F–1, F–2, J–1, J–2, M–1, M–2 classification applicants completing and filing Form I–907 requests are expected to be $296,648 shown in Table 25. Note that this cost includes an average opportunity cost time for lawyers, which assumes half of the applicants use an in house lawyer and half the applicants use an outsourced lawyer.
DHS estimates the total additional annual cost beginning in FY 2025 to E–1, E–2, E–3, L–2, H–4, O–3, P–4, R–2 classification applicants completing and filing Form I–907 requests are expected to be $4,275,880 shown in Table 26. From a societal perspective, the opportunity cost measures represent societal costs, while the filing fees represent transfers from applicants to the government.
In Table 27, DHS uses the estimated new population to complete Form I–907. DHS estimates that as a result of the increase in filing fees for Form I–907, Request for Premium Processing Service, the additional annual transfer payments from the new Form I–539 F–1, F–2, J–1, J–2, M–1, M–2 classification fee-paying population to DHS will be $17,939,250 in FY 2022.
DHS also estimates that annual transfer payments from Form I–539 E–1, E–2, E–3, L–2, H–4, O–3, P–4, R–2 classification applicants who request premium processing by filing Form I–907 to DHS will be $110,572,000 in FY 2025.
In this final rule, DHS is including Form I–765, Application for Employment Authorization, to the list of immigration benefit requests permitted to apply for premium processing. Table 28 shows the total receipts received for Form I–765 for FY 2017 through FY 2021. Table 28 also shows the number of Form I–765 receipts filed with an attorney or accredited representative using Form G–28. The number of Form G–28 submissions allows USCIS to estimate the number of Forms I–765 that are filed by an attorney or accredited representative and thus estimate the opportunity costs of time for an applicant, attorney or accredited representative to file each form. From FY 2017 through FY 2021, total annual receipts for Form I–765 ranged from a low of 2,005,591 in FY 2020 to a high of 2,588,827 in FY 2021. Based on a 5-year annual average, DHS estimates the annual average receipts of Form I–765 to be 2,259,872 with 48 percent of applications filed by an attorney or accredited representative.
DHS does not know how many newly eligible Form I–765 applicants will choose to submit a premium processing request because this population has not previously been eligible to file for premium processing.
DHS is prioritizing premium processing for some Form I–765 categories. DHS anticipates to begin premium processing Employment Authorization Documents for students applying for Optional Practical Training (OPT) and exchange visitors beginning in FY 2022. Table 29 shows the estimated populations that will be eligible for premium processing. Based on a 5-year annual average, DHS estimates the annual average receipts of Form I–765 eligible categories to be 218,076 beginning in FY 2022. DHS also estimates that the annual average receipts of Form I–765 for the additional categories to be 102,495 beginning in 2025 based on a 5-year annual average. DHS identifies a final expanded eligibility group consisting of an additional 1,136,691 applicants that could be covered under this rule; however due to the size and nature of this group, DHS does not have immediate plans for when premium processing will be implemented for them. Lastly, DHS excludes remaining categories that USCIS has no current plans to expand to implement premium processing for.
Since Form I–765 applicants have never been eligible to request premium processing, DHS has no historical data to determine how many of the newly eligible population will take advantage of premium processing. Therefore, DHS uses the 53- percent average of Forms I–129 and I–140 developed in Table 6, that request premium processing for this newly eligible population as a proxy.
DHS understands that some Form I–765 classifications are already on a congressionally mandated or regulatory clock to adjudicate their forms in 30–90 days and therefore it would not be reasonable to assume these applicants would pay the additional fee to submit a premium processing request. Some Form I–765 applicants for asylum-based categories may also be submitting Form I–539 concurrently so they may not be interested in paying for premium processing twice. DHS also recognizes that some classifications could be more interested in faster adjudication times and may submit premium processing requests at a rate more consistent with the estimates applied to the other populations in this analysis. While EAD eligibility categories are not effective predictors of future likelihood to request premium processing, applying the assumptions above to the Form I–765 data by eligibility category yields a more consistent approximation of potential population requesting premium processing for their EADs.
In order to estimate the opportunity costs of time for completing and filing
To estimate the opportunity costs of time to file a Form I–907 to accompany a Form I–765 using an attorney or accredited representative, DHS applies the estimated public reporting time burden (0.58 hours) to the population who will be eligible for premium processing beginning in FY 2022. Table 31 shows the estimated annual opportunity costs of time to complete and file Form I–907 with a Form I–765 if filed by an in-house lawyer or outsourced lawyer. The opportunity cost of time is $4,928,911 based on a simple average of the cost for an in-house lawyer and an outsourced lawyer.
To estimate the opportunity costs of time to complete and file Form I–907 with a Form I–765 without an attorney or accredited representative, DHS applies the estimated public reporting time burden (0.58 hours)
To estimate the opportunity cost of time to file a Form I–907 to accompany a Form I–765 using an attorney or accredited representative, DHS applies the estimated public reporting time burden (0.58 hours)
To estimate the opportunity cost of time to complete and file Form I–907 with a Form I–765 without an attorney or accredited representative, DHS applies the estimated public reporting time burden (0.58 hours) to the population who will be eligible for premium processing beginning in FY 2025 and compensation rate of the applicant. For those newly eligible, shown in Table 34, DHS estimates the total annual opportunity cost of time to applicants completing and filing Form I–907 to be $731,977.
Using the population estimates, DHS next calculates the total costs for the new Form I–765 population to complete and file premium processing requests using Form I–907. DHS estimates the total annual cost to applicants completing and filing Form I–907 requests to be $6,486,289 beginning in FY 2022, and $3,048,488 beginning in FY 2025 as shown in Table 35. From a societal perspective, the opportunity cost measures represent social costs, while the filing fees represent transfers from applicants to the government.
In Table 36, DHS uses the population estimates from above to calculate the transfer payments for the newly eligible Form I–765 population to DHS. DHS estimates that annual transfer payments from Form I–765 applicants requesting request premium processing using Form I–907 will be $173,370,000 to DHS.
In Table 37, DHS uses the population estimates from above to calculate the transfer payments from the newly eligible Form I–765 population to DHS. DHS estimates that annual transfer payments from Form I–765 applicants requesting request premium processing using Form I–907 will be $81,483,000 to DHS.
This final rule will require USCIS enhancements to handle the projected volumes of expedited requests without adverse impact to other processing times. The costs of these enhancements are not estimated but are expected to be covered by the fee increases (transfers) from Form I–129 and Form I–140 petitioners/applicants that request premium processing. DHS does not know how much it will cost to add new categories to apply for premium processing, and these costs are unquantified.
The USCIS Stabilization Act prohibits USCIS from making premium processing available if it adversely affects processing times for immigration benefit requests not designated for premium processing or the regular processing of immigration benefit requests so designated. Therefore, USCIS must first raise sufficient funds to ensure it has the staffing and IT resources to expand premium processing availability. In addition to covering the costs of providing expanded premium processing services, the Stabilization Act authorizes USCIS to spend additional revenue collected as a result of this rule on infrastructure improvements in adjudication processes and information services, reducing the number of pending immigration and naturalization benefit requests or otherwise offsetting the cost of providing services.
In accordance with directives outside the scope of this rulemaking, DHS has prioritized and is in the process of expanding electronic filing for all applications and benefit requests. Some of the immigration benefit requests newly designated for premium processing are already filed electronically.
Because the Act authorizes USCIS to use additional revenue for other improvements and, separately, directs USCIS to semi-annually advise appropriate Congressional Committees of progress on a 5-year plan for infrastructure improvements. For the purpose of this Regulatory Impact Analysis, DHS assumes expanded premium processing to start in FY 2022 for the additional Form I–140 categories, as well as certain categories of Form I–539 and Form I–765. DHS also assumes some additional Form I–539 and Form I–765 categories will start in FY 2025 due to the possibility that revenues do not yet exist to cover any potential costs without adversely affecting other benefit's processing times, as directed by Congress.
As expected, the current processing times for the newly designated immigration benefit requests generally exceed the proposed premium processing timeframes by many months. USCIS generally cannot reallocate staff to adjudicate these immigration benefit requests without adversely affecting processing times, for other immigration benefit requests. Therefore, USCIS must hire and train new staff to handle the expanded availability of premium processing, requiring time and resources.
Future revenues from premium processing are expected to exceed future costs, accomplishing Congress' intention in authorizing the expansion
While potential costs to USCIS of expanding premium processing without harm to non-premium processing times are volume-dependent and difficult to quantify, the above projections suggest that the described implementation plan is expected to generate adequate resources to cover the costs required to support the expansion of premium processing without risk to non-premium processing times.
The USCIS Stabilization Act provides specific purposes that the premium processing fees can be used for. Consistent with those permissible purposes, the premium processing fees collected will be used to provide the premium processing services; make infrastructure improvements in adjudications processes and the provision of information and services to immigration and naturalization benefit requestors; and respond to adjudication demands, including by reducing the number of pending immigration and naturalization benefit requests. The primary benefit of this rule to DHS is the opportunity to increase revenue needed to make improvements in adjudication processes. For example, increases in revenue will allow USCIS to pay for infrastructure improvements, like overhead (such as facility costs, IT equipment and systems, or other expenses) and pay the salaries and benefits of current and new clerical staff, officers, and managers to provide premium processing services and improve agency response to adjudicative demands.
Petitioners of Form I–140 (EB–1, multinational executives and managers and EB–2, members of professions with advanced degrees or exceptional ability seeking a national interest waiver) who were previously ineligible for premium processing may be able to have their petitions reviewed quicker. As a result, an adjudicative action may be taken more quickly. This change benefits businesses that previously would have had to wait longer to receive adjudicative action (such as a notice of approval) for an employee. Other benefits that may accrue to beneficiaries of Form I–140 petitions generally include INA section 204(j) portability eligibility,
Form I–539 applicants may now receive an adjudicative action on their request for a change of status or extension of stay sooner than before, which may alleviate concern about lapses in their nonimmigrant status. This will provide students and trainees greater predictability in processing timeframes so that they may change their status and start school or training on time. The greater predictability will also allow applicants to plan international travel as these applicants are considered to have abandoned their application if they leave the United States while their application is pending. In addition, applicants who may work or apply for work authorization pursuant to their status may do so more quickly than they could without premium processing.
Applicants of Form I–765 may now benefit through receipt of an adjudicative decision in a specified timeframe making those applicants eligible to work legally in the United States sooner than they would have previously. This will allow applicants to start working sooner rather than having to wait for the full processing time period before seeking employment. This could result in cost savings to some applicants who would have had to wait to receive wages without premium processing. This could also result in additional tax revenue to be collected by the government if these workers enter the labor force earlier than they would have otherwise.
DHS summarizes the annual transfer payments from Form I–129 and I–140 petitioners to DHS. Table 38 details the annual transfer payments of this final rule from the Form I–129 and Form I–140 fee-paying population for FY 2021 to DHS was $409,559,500 in FY 2021, due to the increase in filing fees.
DHS summarizes the estimated annual transfer payments from currently eligible Form I–129 and I–140 petitioners to DHS, and the estimated annual transfer payments from newly eligible classification Form I–140 petitioners, Form I–539 applicants, and Form I–765 applicants to DHS. Table 39 details that the estimated annual transfer payments of this final rule from the currently eligible Form I–129, Form I–140 and newly eligible Form I–140, Form I–539 and Form I–765 fee-paying population to DHS will be $663,722,850 due to the increase in filing fees for year 2 through 4 of this analysis, FY 2022 through FY 2024.
DHS also presents the total annual transfers from the petitioners and applicants who may be able to request premium processing in FY 2025. The newly eligible applicants and petitioners are those that may be able to file Form I–907 with their Forms I–539 (application to extend/change nonimmigrant status, E–1, E–2, E–3, H–4, L–2, O–3, P–4, or R–2 classifications), and additional classifications of Form I–765. Table 40 details that the total annual transfer of this final rule from newly eligible premium processing requestors will be $192,055,000 to DHS due to the expected additional filing fees for year 5 through 10 of this analysis, FY 2025 through FY 2030.
DHS presents the total annual costs to the petitioners and applicants who may now be able to request premium processing beginning in FY 2022. The newly eligible applicants and petitioners may be able to file Form I–907 with their Forms I–539 (application to extend/change nonimmigrant status, F–1, F–2, J–1, J–2, M–1, or M–2 classifications, certain classifications of Form I–765, and I–140 (EB–1, multinational executives and managers, and EB–2, members of professions with advanced degrees or exceptional ability seeking a national interest waiver). Table 41 details the total annual costs of this final rule to premium processing requestors of $9,717,505.
DHS presents the total annual costs to the petitioners and applicants who may now be able to request premium processing in FY 2025. The newly eligible applicants and petitioners may be able to file Form I–907 with their Forms I–539 (application to extend/change nonimmigrant status, E–1, E–2, E–3, H–4, L–2, O–3, P–4, or R–2 classifications), and additional classifications of Form I–765. Table 42 details the total annual costs of this final rule to premium processing requestors of $7,324,368.
The Continuing Appropriations Act, 2021 and Other Extensions Act, signed into law on October 1, 2020, contained the Emergency Stopgap USCIS Stabilization Act, which set new fees for premium processing of immigration benefit requests that had been designated for premium processing as of August 1, 2020, and expanded USCIS authority to establish and collect new premium processing fees and to use those additional funds for expanded purposes. Table 43 shows the transfer payments from Form I–129 and Form I–140 premium processing requestors to DHS over the 10-year implementation period of this final rule. DHS used the actual transfer payments for FY 2021, and estimated FY 2022 through FY 2030 based on the 5-year annual average populations. The table also shows the estimated annual transfer payments from newly eligible classification Form I–140 petitioners, Form I–539 applicants, and Form I–765 applicants to DHS for some classifications beginning in FY 2022, and for other classifications in FY 2025. DHS estimates the total annualized transfer payments to be $743,160,614 discounted at 3 percent and $729,337,131 discounted at 7 percent.
In this Regulatory Impact Analysis, DHS is projecting a phased implementation and estimates the costs starting in FY 2022 for certain classifications and FY 2025 for additional new classifications, which is explained in greater detail in the “Government Costs” section of this analysis. This phased implementation will allow current premium processing revenue to cover potential costs from the expedited processing of a large volume of new requests Table 44 shows the cost over the 10-year implementation period of this final rule if some of these newly designated immigration benefit requests are available in FY 2022 and some are not available for premium processing until FY 2025. DHS estimates the annualized cost to be $12,744,217 discounted at 3 percent and $12,216,562 discounted at 7 percent. DHS is using a phased implementation plan for the annualized cost estimate for this rule. The costs to the government are not estimated or included in these totals but are expected to be covered by the fee increases (transfers) from currently eligible Form I–129 and Form I–140 petitioners/applicants that request premium processing.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of the rule on small entities (
The Congressional Review Act (CRA) was included as part of SBREFA by section 804 of SBREFA, Public Law 104–121, 110 Stat. 847, 868,
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of UMRA requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed rule, or final rule for which the agency published a proposed rule, that includes any Federal mandate that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector.
In addition, the inflation-adjusted value of $100 million in 1995 is approximately $178 million in 2021 based on the Consumer Price Index for All Urban Consumers (“CPI–U”).
This rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of E.O. 13132, 64 FR 43255 (Aug. 4, 1999), this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule was drafted and reviewed in accordance with E.O. 12988, Civil Justice Reform. This final rule was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. DHS has determined that this final rule meets the applicable standards provided in section 3 of E.O. 12988.
DHS Directive 023–01 Rev. 01 (Directive) and Instruction Manual 023–01–001–01 Rev. 01 (Instruction Manual) establish the policies and procedures that DHS and its components use to comply with the National Environmental Policy Act (NEPA) and the Council on Environmental Quality
The CEQ regulations allow Federal agencies to establish, with CEQ review and concurrence, categories of actions (“categorical exclusions”) that experience has shown do not have a significant effect on the human environment and, therefore, do not require an Environmental Assessment or Environmental Impact Statement.
The Instruction Manual establishes categorical exclusions that DHS has found to have no such effect.
This rule codifies in regulation the USCIS Stabilization Act, which amended USCIS authority to provide premium processing services and to establish and collect premium processing fees for those services and only amends DHS premium processing regulations to codify those fees set by the USCIS Stabilization Act, as well as the pre-existing timeframes for previously designated immigration benefit requests, and to establish new fees and processing timeframes for the new immigration benefit requests that are now designated for premium processing.
DHS has determined that this rule clearly fits within categorical exclusions A3(a) and (b) in Appendix A of the Instruction Manual established for rules of a strictly administrative or procedural nature, and rules that implement, without substantive change, statutory or regulatory requirements.
This rule is not part of a larger action and presents no extraordinary circumstances creating the potential for significant environmental effects. Therefore, this rule is categorically excluded from further NEPA review.
DHS has reviewed this rule in line with the requirements of section 654 of the Treasury and General Government Appropriations Act, 1999,
DHS has determined that the implementation of this regulation will not negatively affect family well-being and will not have any impact on the autonomy or integrity of the family as an institution.
Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501–12, DHS must submit to OMB, for review and approval, any reporting requirements inherent in a rule, unless they are exempt.
DHS and USCIS invite the general public and other Federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days from the publication date of this final rule. All submissions received must include the OMB Control Number 1615–0048 in the body of the letter, the agency name, and Docket No. USCIS–2006–0025. Submit comments via the Federal eRulemaking Portal website at
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Fees, Immigration.
Accordingly, the Department of Homeland Security amends part 106 of chapter I of title 8 of the Code of Federal Regulations as follows:
8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356; Pub. L. 107–609; 48 U.S.C. 1806; Pub. L. 115–218; Pub. L. 116–159.
(a)
(b)
(c)
(1) Application for classification of a nonimmigrant described in section 101(a)(15)(E)(i), (ii), or (iii) of the INA—$2,500.
(2) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(i)(b) of the INA or section 222(a) of the Immigration Act of 1990, Public Law 101–649—$2,500.
(3) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(ii)(b) of the INA—$1,500.
(4) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(iii) of the INA—$2,500.
(5) Petition for classification of a nonimmigrant described in section 101(a)(15)(L) of the INA—$2,500.
(6) Petition for classification of a nonimmigrant described in section 101(a)(15)(O)(i) or (ii) of the INA—$2,500.
(7) Petition for classification of a nonimmigrant described in section 101(a)(15)(P)(i), (ii), or (iii) of the INA—$2,500.
(8) Petition for classification of a nonimmigrant described in section 101(a)(15)(Q) of the INA—$2,500.
(9) Petition for classification of a nonimmigrant described in section 101(a)(15)(R) of the INA—$1,500.
(10) Application for classification of a nonimmigrant described in section 214(e) of the INA—$2,500.
(11) Petition for classification under section 203(b)(1)(A) of the INA—$2,500.
(12) Petition for classification under section 203(b)(1)(B) of the INA—$2,500.
(13) Petition for classification under section 203(b)(2)(A) of the INA not involving a waiver under section 203(b)(2)(B) of the INA—$2,500.
(14) Petition for classification under section 203(b)(3)(A)(i) of the INA—$2,500.
(15) Petition for classification under section 203(b)(3)(A)(ii) of the INA—$2,500.
(16) Petition for classification under section 203(b)(3)(A)(iii) of the INA—$2,500.
(17) Petition for classification under section 203(b)(1)(C) of the INA—$2,500.
(18) Petition for classification under section 203(b)(2) of the INA involving a waiver under section 203(b)(2)(B) of the INA—$2,500.
(19) Application under section 248 of the INA to change status to a classification described in section 101(a)(15)(F), (J), or (M) of the INA—$1,750.
(20) Application under section 248 of the INA to change status to be classified as a dependent of a nonimmigrant described in section 101(a)(15)(E), (H), (L), (O), (P), or (R) of the INA, or to extend stay in such classification—$1,750.
(21) Application for employment authorization—$1,500.
(d)
(e)
(1) Application for classification of a nonimmigrant described in section 101(a)(15)(E)(i), (ii), or (iii) of the INA—15 days.
(2) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(i)(b) of the INA or section 222(a) of the Immigration Act of 1990, Public Law 101–649—15 days.
(3) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(ii)(b) of the INA—15 days.
(4) Petition for classification of a nonimmigrant described in section 101(a)(15)(H)(iii) of the INA—15 days.
(5) Petition for classification of a nonimmigrant described in section 101(a)(15)(L) of the INA—15 days.
(6) Petition for classification of a nonimmigrant described in section 101(a)(15)(O)(i) or (ii) of the INA—15 days.
(7) Petition for classification of a nonimmigrant described in section 101(a)(15)(P)(i), (ii), or (iii) of the INA—15 days.
(8) Petition for classification of a nonimmigrant described in section 101(a)(15)(Q) of the INA—15 days.
(9) Petition for classification of a nonimmigrant described in section 101(a)(15)(R) of the INA—15 days.
(10) Application for classification of a nonimmigrant described in section 214(e) of the INA—15 days.
(11) Petition for classification under section 203(b)(1)(A) of the INA—15 days.
(12) Petition for classification under section 203(b)(1)(B) of the INA—15 days.
(13) Petition for classification under section 203(b)(2)(A) of the INA not involving a waiver under section 203(b)(2)(B) of the INA—15 days.
(14) Petition for classification under section 203(b)(3)(A)(i) of the INA—15 days.
(15) Petition for classification under section 203(b)(3)(A)(ii) of the INA—15 days.
(16) Petition for classification under section 203(b)(3)(A)(iii) of the INA—15 days.
(17) Petition for classification under section 203(b)(1)(C) of the INA—45 days.
(18) Petition for classification under section 203(b)(2) of the INA involving a waiver under section 203(b)(2)(B) of the INA—45 days.
(19) Application under section 248 of the INA to change status to a classification described in section 101(a)(15)(F), (J), or (M) of the INA—30 days.
(20) Application under section 248 of the INA to change status to be classified as a dependent of a nonimmigrant described in section 101(a)(15)(E), (H), (L), (O), (P), or (R) of the INA, or to extend stay in such classification—30 days.
(21) Application for employment authorization—30 days.
(f)
(2) Premium processing timeframes will commence:
(i) For those benefits described in paragraphs (e)(1) through (16) of this section, on the date the form prescribed by USCIS, together with the required fee(s), are received by USCIS.
(ii) For those benefits described in paragraphs (e)(17) through (21) of this section, on the date that all prerequisites for adjudication, the form prescribed by USCIS, and fee(s) are received by USCIS.
(3) In the event USCIS issues a notice of intent to deny or a request for evidence, the premium processing timeframe will stop. The premium processing timeframe as specified in paragraphs (e)(1) through (21) of this section will start over on the date that USCIS receives a response to the notice of intent to deny or the request for evidence.
(4) Except as provided in paragraph (f)(5) of this section, USCIS will refund the premium processing service fee but continue to process the case if USCIS does not take adjudicative action described in paragraph (f)(1) of this section within the applicable processing timeframe as required in paragraph (e) of this section.
(5) USCIS may retain the premium processing fee and not take an adjudicative action described in paragraph (f)(1) of this section on the request within the applicable processing timeframe, and not notify the person who filed the request, if USCIS opens an investigation for fraud or misrepresentation relating to the immigration benefit request.
(g)
(2) USCIS may suspend the availability of premium processing for immigration benefit requests designated for premium processing if circumstances prevent the completion of processing of a significant number of such requests within the applicable processing timeframe.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule.
In this final rule, DOE is amending its test procedure for microwave oven standby mode and off mode to provide additional specifications for the test conditions related to clock displays and network functions. DOE is not prescribing an active mode test procedure for microwave ovens at this time.
The effective date of this rule is April 29, 2022. The final rule changes will be mandatory for product testing starting September 26, 2022. The incorporation by reference of certain other publications listed in this rulemaking was approved by the Director of the Federal Register on December 17, 2012.
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:
Dr. Stephanie Johnson, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE–2J, 1000 Independence Avenue SW, Washington, DC 20585–0121. Telephone: (202) 287–1943. Email:
Ms. Celia Sher, U.S. Department of Energy, Office of the General Counsel, GC–33, 1000 Independence Avenue SW, Washington, DC, 20585–0121. Telephone: (202) 287–1445. Email:
DOE maintains the following previously approved incorporation by reference in 10 CFR part 430:
International Electrotechnical Commission Standard 62301 (Second Edition), (“IEC 62301), “Household electrical appliances—Measurement of standby power,” (Edition 2.0 2011–01).
Copies of the second edition of IEC 62301 can be obtained from the International Electrotechnical Commission webstore or by going to
See section IV.N of this document for a discussion of this standard.
Microwave ovens are included in the list of “covered products” for which DOE is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6292(a)(10)) DOE's energy conservation standards for microwave ovens are currently prescribed at title 10 of the Code of Federal Regulations (“CFR”) 430.32(j). DOE's test procedures for microwave ovens are prescribed at 10 CFR 430.23(i) and appendix I to subpart B of 10 CFR part 430 (“appendix I”). The following sections discuss DOE's authority to establish test procedures for microwave ovens and relevant background information regarding DOE's consideration of test procedures for this product.
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 (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).
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 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 test procedures for covered products. EPCA provides that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use (as determined by the Secretary) and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
In addition, EPCA requires that DOE amend its test procedures for all covered products to integrate measures of standby mode and off mode energy consumption into the overall energy efficiency, energy consumption, or other energy descriptor, unless the current test procedure already incorporates the standby mode and off mode energy consumption, or if such integration is technically infeasible. (42 U.S.C. 6295(gg)(2)(A)) If an integrated test procedure is technically infeasible, DOE must prescribe separate standby mode and off mode energy use test procedures for the covered product, if a separate test is technically feasible. (
If DOE determines that a test procedure amendment is warranted, it must publish a proposed test procedure and offer the public an opportunity to present oral and written comments on it. (42 U.S.C. 6293(b)(2))
EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product, including microwave ovens, 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 energy efficiency, energy use, and estimated operating costs during a representative average
DOE's test procedure for microwave ovens is codified at appendix I, titled “Uniform Test Method for Measuring the Energy Consumption of Cooking Products.” The microwave oven test procedure measures energy use in standby mode and off mode but does not include an active mode test.
On January 18, 2018, DOE published a request for information (“January 2018 RFI”) describing the requirements for the microwave oven test procedure and requesting information on certain topics related to microwave oven displays and clocks, and whether amendments were needed to address microwave ovens with network functions, which may affect the standby mode energy consumption. DOE also discussed the previous active mode test procedure proposal from a NOPR published February 4, 2013 (“February 2013 NOPR”; 78 FR 7940) and requested information on the feasibility of pursuing active cooking mode and fan-only mode test methods for microwave-only ovens and convection microwave ovens. 83 FR 2566.
On November 14, 2019, DOE published a NOPR (“November 2019 NOPR”), in which it responded to comments received in response to the January 2018 RFI and proposed to amend the standby mode test procedure by specifying that connected units are to be tested with network functions disabled; and that units with clock displays are to be tested with the display on, unless the product powers down the clock display automatically and provides no available setting to allow the consumer to prevent the clock display from powering down automatically. 84 FR 61836, 61839–61840. DOE also initially determined that an active mode test that produced repeatable and representative results without being unduly burdensome was not available, and therefore did not propose to incorporate an active mode test. 84 FR 61836, 61841. DOE held a public meeting via a webinar to present the proposed amendments and provide stakeholders an opportunity to comment.
DOE received comments in response to the November 2019 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.
On August 3, 2021, DOE published a supplemental notice of proposed rulemaking (“August 2021 SNOPR”), in which DOE revised its November 2019 NOPR proposal for testing microwave ovens with a connected function and specified explicitly that if means for disabling the network functions are not provided, the microwave oven will be tested with the network function in the factory default setting or in the as-shipped condition. 86 FR 41759, 41762.
DOE received comments in response to the August 2021 SNOPR from the interested parties listed in Table I.2.
In this final rule, DOE amends appendix I as follows:
• Adds the introductory note; and
• Amends the current microwave oven standby mode test procedure by adding specifications for the status of network functions and clock displays during testing.
The adopted amendments are summarized in Table II.1 compared to the current test procedure, as well as the reason for the adopted change.
DOE has determined, as discussed in section III.H of this document, that of the amendments described in section III and adopted in this document, the direction requiring connected functions to be disabled will result in a lowered energy use for microwave ovens that ship with connected functions enabled by default but includes ways for the user to turn it off. DOE did not identify any basic model that will require retesting and recertification as a result of DOE's adoption of the amendment. DOE has also determined that the test procedure will not be unduly burdensome to conduct. Discussion of DOE's actions are addressed in detail in section III of this document.
The effective date for the amended test procedure adopted in this final rule is 30 days after publication of this document in the
In this test procedure final rule, DOE is adopting some of the proposed changes to appendix I from the November 2019 NOPR and the August 2021 SNOPR. The test procedure established in this final rule improves the representativeness and repeatability for microwave oven standby mode and off mode testing, which is discussed further in section III.C of this document. As discussed in the November 2019 NOPR (84 FR 61836, 61840–61841) and section III.B of this document, DOE is not establishing an active mode test procedure for microwave ovens in this final rule.
This rulemaking applies to microwave ovens, which DOE defines as a category of cooking products that is a household cooking appliance consisting of a compartment designed to cook or heat food by means of microwave energy, including microwave ovens with or without thermal elements designed for surface browning of food and convection microwave ovens. This includes any microwave oven(s) component of a combined cooking product. 10 CFR 430.2. DOE is not amending the scope of the microwave oven test procedure.
The test procedure for microwave ovens at appendix I incorporates by reference certain provisions of the first and second editions of IEC 62301
In response to the November 2019 NOPR, AHAM reiterated its opinion that the current level of IEC standards harmonization is appropriate, and DOE should not require the clocks and displays to be on during testing or incorporate active mode test provisions. (AHAM, No. 15 at pp. 4–5) Whirlpool expressed its support of AHAM's comments and agrees that DOE should not incorporate IEC 60705 Ed. 4.2 active mode test methods. (Whirlpool, No. 16 at p. 1)
DOE further reviewed IEC 62301 and did not identify any additional provisions in the industry test procedure that would be appropriate for or improve the DOE test procedure. As such, DOE maintains its current level of harmonization with IEC 62301.
Additionally, for the reasons discussed in section III.B of this document, DOE is not establishing an active mode test procedure for microwave ovens. Consideration of harmonization with IEC 60705 Ed. 4.2 is therefore unwarranted at this time.
In the November 2019 NOPR, DOE initially determined that incorporating an active mode test procedure for microwave ovens based on IEC Standard 60705 “Household microwave ovens—Methods for measuring performance” Edition 4.2 (“IEC 60705 Ed. 4.2”) would
In response to the November 2019 NOPR, AHAM expressed its support of DOE's proposed decision to not include active mode energy testing for microwave ovens, stating it would be unduly burdensome to conduct with minimal benefit to energy savings. AHAM estimated a five to six times increase in testing time as well as a significant amount of additional cost to acquire new equipment and update facilities. AHAM further commented that because no technology options can yet reduce microwave ovens' active mode energy use, and no other countries require an active mode test procedure, DOE should not amend the test procedure at this time. (AHAM, No. 15 at pp. 2–3)
The CA IOUs and the NOPR Joint Commenters support establishment of an active mode test procedure. The CA IOUs referred to a 2014 study
As an initial matter, DOE will adopt industry test standards as DOE test procedures for covered products and equipment, unless such methodology would be unduly burdensome to conduct or would not produce test results that reflect the energy efficiency, energy use, water use (as specified in EPCA) or estimated operating costs of that equipment during a representative average use cycle. 10 CFR part 430 subpart C appendix A section 8(c) (
The CA IOUs suggested DOE consider inverter technology. DOE considered both the circumstances under which this technology can be more efficient and data DOE obtained from testing inverter-based microwaves under the 2006 version of IEC 60705. The NOPR Joint Commenters suggested DOE consider the newer 4.2 edition of IEC 60705. After comparing the 2006 and 4.2 editions and considering the data and the circumstances under which inverter technology can improve efficiency, DOE declines to adopt an active mode test procedure. Inverter power supplies have the potential to improve cooking efficiency when microwave ovens operate at less than 100-percent power. However, IEC 60705 Ed. 4.2 would not capture any such efficiency because it measures cooking efficiencies only at full power. DOE tested inverter-based microwave ovens according to the 2006 version of IEC 60705 and found there was no correlation to allow DOE to draw a conclusion about their efficiencies compared to non-inverter units at full power.
DOE declines to incorporate IEC 60705 Ed. 4.2 as an active mode test procedure because doing so would not capture the potential energy efficiency improvements of the inverter technology at less than 100-percent power loading conditions. Another obstacle to measuring energy usage at less than full load is a lack of data about consumer usage. To develop a test procedure that measures active mode energy efficiency during a representative average use cycle or period of use that includes operation at less than full load (
DOE proposed in the November 2019 NOPR that for microwave ovens that provide consumers the ability to turn the clock on or off, the unit must be configured such that the clock display remains on at all times during testing, unless the clock powers down automatically and the product provides no available setting for the consumer to prevent the automatic powering-down of the clock. 84 FR 61836, 61842. The proposed amendment to configure the clock and for the clock to remain on would apply regardless of manufacturer instruction, the default setting, or the supplied setting (as specified in paragraph 5.2 of IEC 62301 (Second Edition), which is referenced in section 2.1.1
AHAM commented that it does not support DOE's proposal to keep the clock display on during testing, stating that doing so is unnecessary, unjustified, and not consistent with international test procedures. (AHAM, No. 15 at p. 2) AHAM further commented that requiring the clock to be left on during standby testing would deviate from the international approach, with no evidence to support that the change is necessary. AHAM stated that the current test is repeatable, reproducible, representative, not unduly burdensome to conduct, and that DOE should not deviate from the existing test procedure without supporting data. (AHAM, No. 15 at p. 3)
As noted, EPCA requires DOE to measure the energy consumption of microwave ovens during a representative average use cycle. (42 U.S.C. 6293(b)(3)) As stated, previous manufacturer comments indicated that consumers expect a microwave oven equipped with a display to display the clock time while in standby mode. 73 FR 62034, 62080 (Oct. 17, 2008). DOE has found no evidence, nor did commenters provide any such evidence, that this consumer expectation has changed since then. Accordingly, requiring the clock display to be powered on during standby testing produces test results that are more representative of a microwave's average use cycle than the prior test procedure. For these reasons, DOE amends section 2.1.1 of appendix I to specify that the clock display must be on during testing, regardless of manufacturer's instructions or default setting or supplied setting. The clock display must remain on during testing, unless the clock display powers down automatically with no option for the consumer to override this function.
DOE notes that microwave ovens with displays may be categorized into two types: Those whose standby power consumption varies as a function of the displayed time and those whose standby power does not. This amendment will not affect the repeatability or reproducibility of the test procedure for either type.
For microwave ovens whose standby power varies as a function of displayed time, this amendment will not impact the repeatability or reproducibility of the test procedure because the current test procedure already requires the display clock to be on. Specifically, section 3.1.1.1 of appendix I already requires that for such units, the clock time be set to 3:23 at the end of the stabilization period as specified in Section 5, Paragraph 5.3 of IEC 62301 (First Edition) with power consumption data to be recorded using the average power approach described in Section 5, Paragraph 5.3.2(a) of IEC 62301 (First Edition), but with a single test period of 10 minutes after an additional stabilization period until the clock time reaches 3:33. DOE concluded from its own testing that this approach captures the power consumption of such units in a manner that is repeatable and representative of actual use. 76 FR 12825, 12839.
For microwave ovens whose standby power consumption does not vary as a function of the time displayed, the instruction for testing microwave ovens with the display and clock on simply requires that the clock be turned on at the beginning of the test with no further amendments required to the test method. DOE has not received any indication, either in the past or in response to the 2019 NOPR that compliance with these instructions may impact the repeatability and reproducibility of the test procedure or be overly burdensome.
To analyze potential retest and recertification concerns due to this amendment, DOE identified 35 microwave ovens from various manufacturers that could potentially be tested and certified with their clock displays turned off during standby mode. DOE found that 31 of the units (approximately ninety percent) would have to be certified with the clock display on. These units either included instructions for how to turn on the clock display or the display is already on by default. The amendment to test with the display on would not apply to the remaining four units because they contained auto-power down features that could not be disabled. Based on this review, DOE determines microwave ovens with displays that are explicitly required to be on during testing under the amended test procedure must already be tested with them on.
DOE is aware of microwave ovens on the market with “connected” (
Under DOE's current test procedure,
In the November 2019 NOPR, DOE proposed to add an explicit requirement to test microwave oven standby mode and off mode energy consumption with connected features disabled. DOE also proposed that if a connected function cannot be disabled per manufacturer's instructions, the energy use from such connected functions need not be reported to DOE nor used in determining compliance with the applicable energy conservation standards. 84 FR 61836, 61843. DOE also recognized that alternative approaches could be considered to address the issue of microwaves that do not provide a means for disabling connected functionality. One such approach DOE suggested was to require the energy use of the network function to be measured and subtracted from the standby mode energy measurement.
DOE received comments from interested parties on this proposal, which DOE addressed in the August 2021 SNOPR. Based on consideration of these comments, DOE proposed in the August 2021 SNOPR a modified approach for testing microwave ovens with connected functions that cannot be disabled. Specifically, DOE proposed in the August 2021 SNOPR that if network functions cannot be disabled, then the microwave oven is tested with the network function in the factory default setting or in the as-shipped condition. 86 FR 41759, 41762. DOE requested comment on this revised proposal.
AHAM expressed support for the revised proposal that if manufacturers do not provide instructions on how to disable connected functions, connected functions should be tested in either the default setup condition, or as-shipped condition. However, AHAM suggested that use of the word “disable” may imply that power consumption by the components that provide connected functionality must be zero, and that a low but non-zero value may lead to confusion and inaccurate testing. AHAM stated that IEC 62301 uses the term “low power mode” and that DOE should use this term instead to capture scenarios where components that provide connected functions have been deactivated but continue to consume relatively low but non-zero amount of power and contribute towards standby power measurements. (AHAM, No. 18 at p. 2) AHAM further noted that because connected functions are still evolving, IEC's low power mode definition would allow both flexibility and clarity for DOE's microwave oven test procedure. (
UL also supported DOE's revised proposal for testing microwave ovens with connected functions and suggested that DOE specifically refer to the UL 923
The SNOPR Joint Commenters, however, noted that although DOE's modified proposal would be useful, during actual use these functions are not likely to be disabled if they were shipped in an enabled state. The SNOPR Joint Commenters stated that under these conditions, testing microwave ovens with these functions disabled would be unrepresentative. They urged DOE to require that all microwave ovens be tested in the as-shipped condition, which they asserted would make the measurements more representative. The SNOPR Joint Commenters further suggested that DOE investigate ways to measure the power consumption of connected functions, asserting that these functions are becoming more prevalent and that capturing connected functions' power consumption can better inform consumers as well as incentivize manufacturers. (SNOPR Joint Commenters, No. 19 at pp. 1–2)
The CA IOUs suggested that DOE test all microwave ovens in the as-shipped condition without modification, to prevent wasteful energy use. The CA IOUs also suggested that DOE consider adding disclosure in the public certification requirements of whether connected functions are turned off during testing. They stated that making this information public would provide several benefits, through providing useful data for future rulemakings, promoting better purchasing decisions, and allowing consumers to make informed decisions about the energy performance of models relative to one another. (CA IOUs, No. 20 at pp. 1–2)
Regarding AHAM's comment on use of the term “disabled”, DOE does not agree that the term “disable” implies that the power consumption must be zero. The wording implemented in this final rule specifies that “If the microwave oven can communicate through a network (
Regarding consideration of the term “low power mode” as used by IEC 62301, DOE developed its low-power mode definitions and test provisions in the final rule published on October 31, 2012 (77 FR 65941) consistent with the requirements of EPCA. EPCA requires DOE to integrate measures of standby mode and off mode energy consumption into the overall energy efficiency, energy consumption, or other energy descriptor, while considering the most
DOE has determined that it would not be appropriate to reference UL 923, which provides requirements for user instructions, as UL suggested. The UL 923 test procedure provisions regarding connected functionality address how to test a product based on the features and capabilities presented on the product and/or information provided in the user instructions. As stated, EPCA requires DOE to establish test procedures that are reasonably designed to produce test results, which measure energy efficiency and energy use during a representative average use cycle or period of use, while being not unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) The purpose of the test procedure is not to impose requirements regarding the consumer operation of a product, or give preference to any specific implementations of connected functionality. Manufacturers can choose what information to include in the user instructions and the format of these instructions at their own discretion.
In response to the CA IOUs and SNOPR Joint Commenters' comments on connected functions, DOE reiterates that it lacks sufficient data to design a test procedure that measures the energy use associated with connected functions that is representative of average use, as required by EPCA. (See 42 US.C. 6293(b)(3)) DOE reemphasizes that, as stated in the November 2019 NOPR, for a unit that is connected to the internet, the speed and configuration of an internet connection could also impact the energy consumed by the device. 84 FR 61836, 61843. Connected features in microwave ovens are also implemented in a variety of ways across different brands. Further, the design and operation of these features is continuously evolving as the nascent market begins to grow for these products. DOE is not aware of any data available, nor did interested parties provide any such data, regarding the consumer use of connected features. Without such data, DOE cannot establish a representative test configuration for assessing the energy consumption of connected functionality for microwave ovens. Therefore, DOE is finalizing its proposal to require explicitly disabling connected functions, where possible. However, DOE agrees that there are benefits to manufacturers' reporting whether a microwave oven basic model includes connected functions and the status of such functions during testing. As such, in a separate rulemaking DOE may consider changing the certification and reporting requirements for microwave ovens to require manufacturers to provide this information.
In summary, DOE amends section 2.1.1 of appendix I to specify that if the microwave oven can communicate through a network (
EPCA requires DOE to incorporate the active mode, standby mode, and off mode energy use values into a single energy use metric, unless it is technically infeasible to do so. (42 U.S.C. 6295(gg)(2)(A)) Because, in the November 2019 NOPR, DOE did not propose an active mode test procedure, which is required when developing a single energy use metric, DOE found that consideration of an integrated metric was technically infeasible and thus moot. Therefore, DOE did not propose to make any changes to the existing metric for microwave oven energy consumption in the November 2019 NOPR. 84 FR 61836, 61843. AHAM supported DOE's proposal to not include an active mode test procedure and thereby maintain the current metric. (AHAM, No. 15 at p. 4) For the aforementioned reasons, DOE maintains the microwave oven energy consumption metric without the introduction of an integrated annual energy consumption metric in this final rule.
In this final rule, DOE is not adopting the changes proposed in the November 2019 NOPR to correct two cross-references and add a title that distinguishes test procedure provisions by the type of energy supplied. Since the publication of the November 2019 NOPR, DOE also published a test procedure withdrawal rule for cooking products on August 18, 2020 (“August 2020 Withdrawal Rule”) that amended appendix I to remove the two cross-references altogether and obviated the need to add a section title that separates test instructions based on the energy supplied. 85 FR 50757.
The effective date for the adopted test procedure amendment will be 30 days after publication of this final rule in the
In the November 2019 NOPR, DOE proposed to remove the introductory note in appendix I which referenced a June 14, 2017, date after which any representations related to energy or power consumption of cooking products must be based upon results generated under the test procedure. As this date had passed, the introductory note was no longer needed.
Since the publication of the November 2019 NOPR, DOE published the August 2020 Withdrawal Rule that also amended appendix I. 85 FR 50757. Among other things, that withdrawal rule amended appendix I to remove the introductory note. 85 FR 50757, 50766.
In this final rule, DOE is adding an introductory note communicating the effective and compliance dates of amendments made in the rule.
In this document, DOE amends the current test procedure for microwave ovens by adding a requirement that clock displays be turned on during testing, notwithstanding the requirements in section 2.1.1 of appendix I, which references paragraph 5.2 of IEC 62301 (Second Edition). That is, DOE makes the following changes from the current requirements of section 2.1.1 of appendix I: Configure the unit such that the clock display remains on
Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review, 76 FR 3821 (Jan. 21, 2011), requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. DOE emphasizes as well that E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”) has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, this final regulatory action is consistent with these principles.
Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this final regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed this final rule under the provisions of the Regulatory Flexibility Act, and the procedures and policies published on February 19, 2003. DOE certifies that this final rule does not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is as follows:
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 identified manufacturers using DOE's Compliance Certification Database (“CCD”),
This final rule amends appendix I by (1) adding the introductory note and (2) adding specifications for the status of network functions and clock displays during testing. The test procedure as amended by this final rule does not add any substantive changes to the testing process. Furthermore, DOE performed a review of microwave ovens currently certified in the CCD and did not find any examples of basic models that would require retesting and recertification as a result of these amendments. Therefore, DOE has determined that the proposed amendments in this final rule would not result in additional testing costs for any manufacturers, including small businesses. For this reason, DOE concludes and certifies that this final rule does not have a significant economic impact on a substantial number of small entities and 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 SBA for review under 5 U.S.C. 605(b).
Manufacturers of microwave ovens 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 microwave ovens. (
DOE is not amending the certification or reporting requirements for microwave ovens in this final rule. Instead, DOE may consider proposals to amend the certification requirements and reporting for microwave ovens under a separate rulemaking regarding appliance and equipment certification. DOE will address changes to OMB Control Number 1910–1400 at that time, as necessary.
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 microwave ovens. 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 (Aug. 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 other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104–4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action 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 adopted modifications to the test procedure for microwave ovens in this final rule do not incorporate any new commercial standard. DOE has previously consulted with both the Attorney General and the Chairman of the FTC about the impact on competition of the incorporation by reference of IEC 62301 (First Edition) and IEC 62301 (Second Edition) in appendix I to subpart B of part 430 and received no comments objecting to their use. There are no changes to the incorporation in this final rule.
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 does not incorporate by reference any new industry standard. The incorporation by reference of IEC 62301 (First Edition) and IEC 62301 (Second Edition) in appendix I to subpart B of part 430 has already been approved by the Director of the Federal Register and there are no changes to the incorporation in this final rule.
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 23, 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
For the reasons stated in the preamble, DOE amends part 430 of chapter II of title 10, Code of Federal Regulations as set forth below:
42 U.S.C. 6291–6309; 28 U.S.C. 2461 note.
The addition and revision read as follows:
On or after April 29, 2022 and prior to September 26, 2022 representations, including compliance certifications, made with respect to the energy use of microwave ovens must fairly disclose the results of testing pursuant to either this appendix or appendix I as it appeared at 10 CFR part 430, subpart B, in the 10 CFR parts 200 to 499 edition revised as of January 1, 2020. Representations made with respect to the energy use of microwave ovens within that range of time must fairly disclose the results of testing under the selected version. Given that after September 26, 2022 representations with respect to the energy use of microwave ovens 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.
2.1.1
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the navigable waters of the Atlantic Intracoastal Waterway (AICW) and Queen Creek near Swansboro, Onslow County, NC. The safety zone is necessary to enhance the safety of mariners and participants during a mass-rescue training exercise. Entry of vessels or persons into this safety zone is prohibited unless specifically authorized by the Captain of the Port (COTP) North Carolina or a designated representative.
This rule is effective from 8 a.m. April 19, 2022, through 4 p.m. April 21, 2022.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Petty Officer Ken Farah, Waterways Management Division, U.S. Coast Guard; telephone 910–772–2221, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. It would be impracticable and contrary to the public interest to publish an NPRM because we must establish this safety zone by April 19, 2022, to protect persons, vessels, and participants against the hazards associated with operations during the full-scale training exercise. This exercise involves both surface vessels and aircraft and will simulate search and rescue operations for persons in the water and other areas on land at different points within the designated area. Due to the dynamic nature of this exercise, non-participants should stay clear of the area.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port North Carolina (COTP) has determined potential hazards associated with operations during a planned mass rescue training exercise starting April 19, 2022, is a safety concern for anyone transiting the designated training area of the AlCW and Queen Creek in the vicinity of Hammocks Beach State Park in Onslow County, NC, because the training will involve persons in the water. This rule is necessary to protect persons, vessels, and participants from the hazards associated with the full scale mass rescue operations training exercise.
This rule establishes a safety zone April 19–21, 2022, to be enforced from 8 a.m. through 4 p.m. daily. The safety zone will include all navigable waters of Queen Creek, Parrot Swamp, the Atlantic Intracoastal Waterway (AICW), Bogue Sound, and White Oak River within a line between the following latitudes and longitudes: starting at Queen Creek Road Bridge at N 34°41′03″, W 077°10′17″; then Southeast along the shoreline to N 34°40′38″, W 077°09′47″; then Southwest to N 34°40′20″, W 077°10′10″; then Southeast
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, and duration of the safety zone, which will impact a designated area of the AICW and Queen Creek in Onslow County, NC. Vessel traffic will not be able to safely transit around this safety zone. However, the eight hour enforcement periods should not overly burden any vessel or entity because it is not an area normally used for commercial vessel traffic and recreational vessel traffic is lower at this time of the year. The Coast Guard will issue a Broadcast Notice to Mariners about the safety zone and this rule to notify vessels in the region of the establishment of this regulation. The rule also allows vessels to request permission from the COTP or a designated representative to enter the zone if necessary.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601–612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023–01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a Safety Zone lasting eight hours on two consecutive days that prohibits entry into portions of Queen Creek, Parrot Swamp, the Atlantic Intracoastal Waterway (AICW), Bogue Sound, and White Oak River in the vicinity of Hammocks Beach Park in Onslow County, NC. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023–01–001–01,
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.2.
(a)
(b)
(c)
(2) With the exception of the participants, entry into or remaining in this safety zone is prohibited unless authorized by the COTP North Carolina or a designated representative.
(3) All vessels within this safety zone when this section becomes effective must depart the zone immediately.
(4) The COTP North Carolina can be reached through the Coast Guard Sector North Carolina Command Duty Officer, Wilmington, North Carolina, at telephone· number 910–343–3882.
(5) The Coast Guard can be contacted on VHF–FM marine band radio channel 13 (165.65 MHz) and channel 16 (156.8 MHz).
(d)
(e)
Environmental Protection Agency (EPA).
Final action.
The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of Connecticut. The revision provides the State's determination, via a negative declaration, that there are no facilities within its borders subject to EPA's 2016 Control Technique Guideline (CTG) for the oil and gas industry. The intended effect of this action is to approve this item into the Connecticut SIP. This action is being taken under the Clean Air Act.
This final action is effective on April 29, 2022.
EPA has established a docket for this action under Docket Identification No. EPA–R01–OAR–2022–0089. All documents in the docket are listed on the
Eric Rackauskas, Air Quality Branch, U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office Square—Suite 100, (Mail code 05–2), Boston, MA 02109–3912, tel. (617) 918–1628, email
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
On February 9, 2022 (87 FR 7410), EPA published a notice of proposed rulemaking (NPRM) for the State of Connecticut.
The NPRM proposed approval of a SIP revision by the Connecticut Department of Energy and Environmental Protection (DEEP) that
Other specific requirements of the Connecticut negative declaration for the 2016 Oil and Natural Gas Industry CTG and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here. No public comments were received on the NPRM.
EPA is approving Connecticut's negative declaration for the 2016 Oil and Natural Gas Industry CTG as a revision to the Connecticut SIP.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 31, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; recreational season length.
NMFS announces that the length of the recreational fishing season for black sea bass in the exclusive economic zone (EEZ) of the South Atlantic will extend throughout the species' 2022–2023 fishing year. Announcing the length of recreational season for black sea bass is one of the accountability measures (AMs) for the recreational sector. This announcement allows recreational fishers to maximize their opportunity to harvest the recreational annual catch limit (ACL) for black sea bass during the fishing season while managing harvest to protect the black sea bass resource.
This rule is effective from 12:01 a.m. eastern time on April 1, 2022, through March 31, 2023, unless changed by subsequent notification in the
Nikhil Mehta, NMFS Southeast Regional Office, telephone: 727–824–5305, email:
The South Atlantic snapper-grouper fishery includes black sea bass south of 35°15.9′ N latitude and is managed under the
The recreational fishing year for black sea bass is April 1 through March 31. The recreational AM for black sea bass requires that before the April 1 start date of each recreational fishing year, NMFS projects the length of the recreational fishing season based on when NMFS projects the recreational ACL will be met, and announces the recreational season end date in the
The recreational ACL for the 2020–2021 black sea bass fishing year is 310,602 lb (140,887 kg), gutted weight, 366,510 lb (166,246 kg), round weight. The recreational ACL was set through the final rule for Abbreviated Framework Amendment 2 to the FMP (84 FR 14021, April 9, 2019).
NMFS estimates that recreational landings for the 2022–2023 fishing year will be less than the 2020–2021 recreational ACL. To make this determination, NMFS compared recreational landings in the last 3 fishing years (2018/2019, 2019/2020, and 2020/2021) to the recreational ACL for the 2022–2023 black sea bass fishing year. Recreational landings in each of the past 3 fishing years have been substantially less than the 2022–2023 recreational ACL; therefore, recreational landings are projected to be less than the 2022–2023 recreational ACL. Accordingly, the recreational sector for black sea bass is not expected to close during the fishing year as a result of reaching its ACL, and the season end date for recreational fishing for black sea bass in the South Atlantic EEZ south of 35°15.9′ N latitude is March 31, 2021.
The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of South Atlantic black sea bass and is consistent with the FMP, the Magnuson-Stevens Act, and other applicable laws.
This action is taken under 50 CFR 622.193(e)(2) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement the notice of the recreational season length constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), because prior notice and opportunity for public comment on this temporary rule is unnecessary. Such procedures are unnecessary, because the rule establishing the AM has already been subject to notice and comment and all that remains is to notify the public of the recreational season length.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification; quota transfers.
NMFS announces that the State of Maryland is transferring a portion of its 2021 commercial bluefish quota to the State of North Carolina. This quota adjustment is necessary to comply with the Atlantic Bluefish Fishery Management Plan quota transfer provisions. This announcement informs the public of the revised commercial bluefish quotas for Maryland and North Carolina.
Effective March 25, 2022 through December 31, 2021.
Laura Hansen, Fishery Management Specialist, (978) 281–9225.
Regulations governing the Atlantic bluefish fishery are found in 50 CFR 648.160 through 648.167. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through Florida. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.162, and the final 2021 allocations were published on December 16, 2020 (85 FR 81421).
The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan (FMP) published in the
Maryland is transferring 10,000 lb (4,536 kg) to North Carolina through mutual agreement of the states. This transfer was requested to ensure that North Carolina would not exceed their 2021 state quota. The revised bluefish quotas for 2021 are: Maryland 33,084 lb (15,007 kg) and North Carolina, 1,082,377 lb (490,958 kg).
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 648.162(e)(1)(i) through (iii), which was issued pursuant to section 304(b), and is exempted from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS approves and implements the measures included in Framework Adjustment 34 to the Atlantic Sea Scallop Fishery Management Plan as adopted and submitted by the New England Fishery Management Council. Framework 34 establishes scallop specifications and other measures for fishing years 2022 and 2023. This action incorporates the new specifications-setting methodology and other changes developed in Amendment 21 to the Atlantic Sea Scallop Fishery Management Plan into the fishing year 2022 specifications. In addition, Framework 34 implements measures to protect small scallops, promote scallop recruitment in the mid-Atlantic, and reduce bycatch of flatfish. This final rule addresses regulatory text that is unnecessary, outdated, or unclear. This action is necessary to prevent overfishing and improve both yield-per-recruit and the overall management of the Atlantic sea scallop resource.
Effective April 1, 2022, except for amendatory instruction 7 (removing and reserving § 648.60(a)), which is effective May 31, 2022.
The Council has prepared an Environmental Assessment (EA) for this action that describes the measures contained in Framework Adjustment 34 to the Atlantic Sea Scallop Fishery Management Plan (FMP) and other considered alternatives and analyzes the impacts of these measures and alternatives. The Council submitted Framework 34 to NMFS that includes the EA, a description of the Council's preferred alternatives, the Council's rationale for selecting each alternative, and a Regulatory Impact Review (RIR). Copies of supporting documents used by the New England Fishery Management Council, including the EA and RIR, are available from: Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950 and accessible via the internet in documents available at:
Travis Ford, Fishery Policy Analyst, (978) 281–9233.
The New England Fishery Management Council adopted Framework 34 to the Atlantic Sea Scallop FMP on December 9, 2021. The Council submitted Framework 34, including an EA, for NMFS approval on March 10, 2022. NMFS published a proposed rule for Framework 34 on February 15, 2022 (87 FR 8543). To help ensure that the final rule would be implemented before the start of the fishing year on April 1, 2022, the proposed rule included a 15-day public comment period that closed on March 2, 2022.
On January 12, 2022, NMFS published Amendment 21 to the Atlantic Sea Scallop FMP (87 FR 1688). Amendment 21 makes several changes to the management, including specifications-setting methodology, of the Northern Gulf of Maine (NGOM) and limited access general category (LAGC) individual fishing quota (IFQ) components. Framework 34 incorporates these new specifications-setting methodology and other changes developed in Amendment 21 into the fishing year 2022 specifications.
NMFS has approved all of the measures in Framework 34 recommended by the Council, as described below. This final rule implements Framework 34, which sets scallop specifications and other measures for fishing years 2022 and 2023, including changes to the catch, effort, and quota allocations and adjustments to the rotational area management program for fishing year 2022, measures to reduce bycatch of flatfish, and default specifications for fishing year 2023. The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) allows NMFS to approve, partially approve, or disapprove measures proposed by the Council based on whether the measures are consistent with the FMP, the Magnuson-Stevens Act and its National Standards, and other applicable law. NMFS generally defers to the Council's policy choices unless there is a clear inconsistency with the law or the FMP. Details concerning the development of these measures were contained in the preamble of the proposed rule and are not repeated here. This final rule also addresses regulatory text that is unnecessary, outdated, or unclear consistent with section 305(d) of the Magnuson-Stevens Act.
The Council set the OFL based on a fishing mortality (F) of 0.61, equivalent to the F threshold updated through the Northeast Fisheries Science Center's most recent scallop benchmark stock assessment that was completed in September 2020. The ABC and the equivalent total ACL for each fishing year are based on an F of 0.45, which is the F associated with a 25-percent probability of exceeding the OFL. The Council's Scientific and Statistical Committee (SSC) recommended scallop fishery ABCs of 56.7 million lb (25,724 mt) for 2022 and 51.1 million lb (23,200 mt) for the 2023 fishing year, after accounting for discards and incidental mortality. The SSC will reevaluate and potentially adjust the ABC for 2023 when the Council develops the next framework adjustment.
Table 1 outlines the scallop fishery catch limits.
This action deducts 1.275 million lb (578 mt) of scallops annually for 2022 and 2023 from the ABC for use as the Scallop RSA to fund scallop research. Participating vessels are compensated through the sale of scallops harvested under RSA projects. Of the 1.275 million lb (578 mt) allocation, NMFS has already allocated 153,834 lb (69,778 kg) to previously-funded multi-year projects as part of the 2021 RSA awards process. NMFS reviewed proposals submitted for consideration of 2022 RSA awards and announced project selections on March 16, 2022. Details on the 2022 RSA awards can be found on our website here:
This action also deducts 1 percent of the ABC for the industry-funded observer program to help defray the cost to scallop vessels that carry an observer. The observer set-aside is 257 mt for 2022 and 232 mt for 2023. The Council may adjust the 2023 observer set-aside when it develops specific, non-default measures for 2023. In fishing year 2022, the compensation rates for limited access vessels in open areas fishing under days-at-sea (DAS) is 0.08 DAS per DAS fished. For access area trips, the compensation rate is 200 lb (90.7 kg), in addition to the vessel's possession limit for the trip for each day or part of a day an observer is onboard.
For LAGC IFQ trips less than 24 hours, a vessel will be able to harvest the trip limit and the daily compensation rate on the observed trip, or the vessel could harvest any unfished compensation on a subsequent trip while adhering to the commercial possession limit. LAGC IFQ vessels may possess an additional 200 lb (90.7 kg) per trip on trips less than 24 hours when carrying an observer.
Amendment 21 made LAGC IFQ vessels eligible for additional compensation when carrying an observer on board and fishing trips longer than 24 hours. For fishing year 2022, the daily compensation rate of 200 lb (90.7 kg) will be prorated at 12-hour increments for trips exceeding 24 hours. The amount of compensation a vessel could receive on 1 trip would be capped at 2 days (48 hours) and vessels fishing longer than 48 hours will not receive additional compensation allocation. For example, if the observer compensation rate is 200 lb/day (90.7 kg/day) and an LAGC IFQ vessel carrying an observer departs on July 1 at 2200 and lands on July 3 at 0100, the length of the trip would equal 27 hours, or 1 day and 3 hours. In this example, the LAGC IFQ vessel would be eligible for 1 day plus 12 hours of compensation allocation,
Amendment 21 also expanded the scallop industry-funded observer program to monitor directed scallop fishing in the NGOM by using a portion of the NGOM allocation to off-set monitoring costs. For NGOM trips, a vessel will be able to harvest the trip limit and the daily compensation rate on the observed trip. NGOM vessels may possess an additional 125 lb (56.7 kg) per trip when carrying an observer.
NMFS may adjust the compensation rate throughout the fishing year, depending on how quickly the fleets are using the set aside. The Council may adjust the 2023 observer set-aside when it develops specific, non-default measures for 2023.
This action implements vessel-specific DAS allocations for each of the three limited access scallop DAS permit categories (
For fishing year 2022 and the start of 2023, Framework 34 keeps Nantucket Lightship-South-Deep Access Area (NLS–S–D), Closed Area II (CAII), and Closed Area I Access Area (CAI) open as access areas. However, Framework 34 does not allocate any additional landings from CAI for the limited access fleet (see below).
Framework 34 keeps the Closed Area II-East (CAII–E) Closed Area closed to scallop fishing. This action also closes the New York Bight Scallop Rotational Area (Table 3) to scallop fishing to optimize growth of the several scallop year classes within the closure area and to support scallop fishing in years following the 2022 fishing year.
This action also closes the Nantucket Lightship-West (NLSW) Scallop Rotational Area (Table 4). The Council is closing this area to support the growth of this year class of small scallops in the absence of fishing pressure.
Framework 34 reverts the Mid-Atlantic Scallop Rotational Area (MAAA) to part of the open area. This area was previously managed as part of the area rotation program, but it no longer meets the criteria for either closure or controlled access. This area will become part of the open area and could be fished as part of the DAS program or on LAGC IFQ trips. Because fishing year 2021 carryover access area fishing will continue in the MAAA until May 30, 2022, this area would not revert to open area until May 31, 2022.
Framework 34 reverts the Stellwagen Bank Scallop Rotational Area to part of the NGOM. This area was closed in 2020 to protect a substantial number of small scallops. Framework 34 opens this area to NGOM fishing because those small scallops have now recruited into the fishery.
Table 5 provides the limited access full-time allocations for all of the access areas for the 2022 fishing year and the first 60 days of the 2023 fishing year. These allocations could be landed in as many trips as needed, so long as vessels do not exceed the possession limit (also in Table 5) on any one trip.
Framework 34 allows full-time limited access vessels to exchange access area allocation in 7,500-lb (3,402-kg) increments. The owner of a vessel issued a full-time limited access scallop permit is able to exchange unharvested scallop pounds allocated into an access area for another full-time limited access vessel's unharvested scallop pounds allocated into another access area. For example, a full-time vessel may exchange 7,500 lb (3,402 kg) from one access area for 7,500 lb (3,402 kg) allocated to another full-time vessel for another access area. Further, a full-time vessel may exchange 15,000 lb (6,804 kg) from one access area for 15,000 lb (6,804 kg) allocated to another full-time vessel for another access area. One-for-one access area allocations for part-time limited access vessels must occur in the increments of a possession limit,
Table 6 provides the limited access part-time allocations for all of the access areas for the 2022 fishing year and the first 60 days of the 2023 fishing year. These allocations could be landed in as many trips as needed, so long as the vessels do not exceed the possession limit (also in Table 6) on any one trip.
Because of the limited amount of biomass in CAI to support a full limited access trip, Framework 34 will not allocate any landings from CAI to the limited access fleet. CAI will only be available for the LAGC access area trips and RSA compensation fishing.
Amendment 21 developed landing limits for all permit categories in the NGOM and established an 800,000-lb (362,874-kg) NGOM Set-Aside trigger for the NGOM directed fishery, with a sharing agreement for access by all permit categories for allocation above the trigger. Allocation above the trigger (
This action allows vessels participating in RSA projects to harvest RSA compensation from the NLS–S–D, CAI, CAII and the open area. However, to reduce bycatch of flatfish on Georges Bank, vessels may only harvest RSA compensation from Closed Area II from June 1, 2021, through August 14, 2021. All vessels are prohibited from harvesting RSA compensation pounds in all other access areas. Vessels are prohibited from fishing for RSA compensation in the NGOM unless the vessel is fishing an RSA compensation trip using NGOM RSA allocation that was awarded to an RSA project. Finally, Framework 34 prohibits the harvest of RSA from any access areas under default 2023 measures. At the start of 2023, RSA compensation may only be harvested from open areas. The Council will re-evaluate this default prohibition measure in the action that would set final 2023 specifications.
This rule includes four revisions to address regulatory text that is unnecessary, outdated, or unclear. In addition, this rule includes changes to regulatory text that would allow NMFS to implement measures developed in Amendment 21 to the Atlantic Sea Scallop FMP for fishing year 2022. Specifically, these changes would implement regulations that expand the scallop industry-funded observer program to monitor directed scallop fishing in the NGOM by using a portion of the NGOM allocation to off-set monitoring costs. These revisions are consistent with section 305(d) of the Magnuson-Stevens Act, which provides authority to the Secretary of Commerce to promulgate regulations necessary to ensure that amendments to an FMP are carried out in accordance with the FMP and the Magnuson-Stevens Act. The first revisions, at §§ 648.11(k)(1), (k)(2)(i) and (iii), (k)(5) introductory text, (k)(5)(i) introductory text, (k)(5)(i)(C), (k)(5)(ii), and (k)(6) and 648.52(h) make changes that require vessels fishing in the NGOM to participate in the observer program and allow vessels to possess the additional observer compensation allocation when carrying an observer. Amendment 21 expanded the scallop industry-funded observer program to monitor directed scallop fishing in the NGOM by using a portion of the NGOM allocation to off-set monitoring costs. The second revision at § 648.52(g) modified an example of an LAGC IFQ vessel exceeding the possession limit to defray the cost for observers to comport with the proration changes provided in Amendment 21. The third revision at §§ 648.53(a)(7) and 648.62(a)(3) changes the term “scallop incidental catch” to “scallop incidental landings” to more accurately describe the catch limit. The fourth revision at § 648.53(b) clarifies that DAS allocations are determined by applying estimates of open area landings per unit effort projected through the specifications or framework adjustment processes used to set annual allocations and dividing that amount among vessels in the form of DAS calculated. Finally, in paragraphs § 648.59(a)(2) and (b)(3) the terms “scallop rotational closed area” and “scallop rotational access area” are added for consistency throughout the regulations.
We received one comment in support of this action. However, while the individual supported the conservation objectives of the action, she expressed concern about the projected decline in revenue for the fleet. We have determined that the measures in Framework 34 are optimal for the fishery because they would minimize risks associated with stock biomass uncertainties while protecting small scallops for future harvest.
We made two changes from that proposed rule consistent with section 305(d) of the Magnuson-Stevens Act. First, we edited regulatory text at § 648.52(g) to update references to the observer set-aside and to clarify an example of an LAGC IFQ vessel retaining an allowance of scallops in addition to the possession limit to defray the cost for observers. Second, we added regulatory text at § 648.52(h) to clarify that a NGOM vessel with an observer on board may retain, per observed trip, an allowance of scallops in addition to the possession limit, as established by the Regional Administrator, to defray the cost of carrying an observer.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act and other applicable law.
The Office of Management and Budget has determined that this rule is not significant pursuant to E.O. 12866.
This final rule does not contain policies with federalism or “takings” implications, as those terms are defined in E.O. 13132 and E.O. 12630, respectively.
This action does not contain any collection-of-information requirements subject to the Paperwork Reduction Act (PRA).
The Assistant Administrator for Fisheries has determined that the need to implement the measures of this rule in an expedited manner is necessary to
The 2022 fishing year begins on April 1, 2022. If Framework 34 is delayed beyond April 1, certain default measures, including access area designations, DAS, IFQ, research set-aside and observer set-aside allocations, would automatically be put into place. Most of these default allocations were set more conservatively than what would be implemented under Framework 34. Under default measures, each full-time vessel has 18 DAS and one access area trip for 18,000 lb (8,165 kg) in the MAAA. However, Framework 34 will not allocate effort into the MAAA. Framework 34 has payback measures should a vessel harvest any of its default allocation in this area. Pursuant to 5 U.S.C. 553(d)(1), we waive the 30-day delay in effectiveness because this action relieves restrictions by providing full-time vessels with an additional 6 DAS (24 DAS total) and 27,000 lb (12,247 kg) in access area allocations (45,000 lb (20,412 kg) total). Further, LAGC IFQ vessels will receive an additional 72-mt (784-mt total) allocation and 500 access area trips spread out across 2 access areas (1,071 trips total). Accordingly, this action prevents more restrictive aspects of the default measures from going into place. Framework 34 could not have been put into place sooner to allow for a 30-day delayed effectiveness because the information and data necessary for the Council to develop the framework was not available in time for this action to be forwarded to NMFS and implemented by April 1, 2022, the beginning of the scallop fishing year. Delaying the implementation of this action for 30 days would delay positive economic benefits to the scallop fleet and could negatively impact the access area rotation program by delaying fishing in access areas that should be available.
Pursuant to section 604 of the Regulatory Flexibility Act (RFA), NMFS has completed a final regulatory flexibility analysis (FRFA) in support of Framework 34. The FRFA incorporates the IRFA, a summary of the significant issues raised by public comments in response to the IRFA, NMFS responses to those comments, a summary of the analyses completed in the Framework 34 EA, and the preamble to this final rule. A summary of the IRFA was published in the proposed rule for this action and is not repeated here. A description of why this action was considered, the objectives of, and the legal basis for this rule is contained in Framework 34 and in the preambles to the proposed rule and this final rule and are not repeated here. All of the documents that constitute the FRFA are available from NMFS and/or the Council, and a copy of the IRFA, the RIR, and the EA are available upon request (see
We received one comment from an individual who supported the conservation objectives of the action but expressed concern about the projected decline in revenue for the fleet. She did not directly reference the IRFA. We have determined that the measures in Framework 34 are optimal for the fishery because they would minimize risks associated with stock biomass uncertainties while protecting small scallops for future harvest.
These regulations would apply to all vessels with limited access and LAGC scallop permits, and there would be economic impacts to small entities. Those impacts are described in detail in the draft of Framework 34, specifically, in the IRFA (Section 7.2) and in the Economic and Social Impacts section (Section 6.6). Framework 34 (Section 5.6) provides extensive information on the number of vessels that are affected by this action, their home and principal state, dependency on the scallop fishery, and revenues and profits (see
For RFA purposes, NMFS defines a small business in a shellfish fishery as a firm that is independently owned and operated with receipts of less than $11 million annually (see 50 CFR 200.2). Individually permitted vessels may hold permits for several fisheries, harvesting species of fish that are regulated by several different fishery management plans, even beyond those impacted by the proposed action. Furthermore, multiple permitted vessels and/or permits may be owned by entities affiliated by stock ownership, common management, identity of interest, contractual relationships, or economic dependency. For the purposes of this analysis, “ownership entities” are defined as those entities with common ownership as listed on the permit application. Only permits with identical ownership are categorized as an “ownership entity.” For example, if five permits have the same seven persons listed as co-owners on their permit applications, those seven persons would form one “ownership entity,” that holds those five permits. If two of those seven owners also co-own additional vessels, that ownership arrangement would be considered a separate “ownership entity” for the purpose of this analysis.
On June 1 of each year, ownership entities are identified based on a list of all permits for the most recent complete calendar year. The current ownership dataset is based on the calendar year 2020 permits and contains average gross sales associated with those permits for calendar years 2018 through 2020. Matching the potentially impacted 2020 fishing year permits described above (limited access and LAGC IFQ) to calendar year 2020 ownership data results in 177 distinct ownership entities for the limited access fleet and 89 distinct ownership entities for the LAGC IFQ fleet. Based on the Small Business Administration guidelines, 170 of the limited access distinct ownership entities and 89 LAGC IFQ entities are categorized as small. Seven limited access entities and no LAGC IFQ entities are categorized as large entities. There were 44 distinct small business entities with NGOM permits in 2020 permits.
This action contains no new collection-of-information, reporting, or recordkeeping requirements. This proposed rule does not require specific action on behalf of regulated entities other than to ensure they stay within the specifications that are set.
During the development of Framework 34, NMFS and the Council considered ways to reduce the regulatory burden on, and provide flexibility for, the regulated entities in this action. For instance, Framework 34 allows full-time limited access vessels to exchange access area allocation in 7,500-lb (3,402-kg) increments. This provides more flexibility to limited access vessel owners by allowing them to exchange partial trips to better fit their fishing practices. In addition, Framework 34 increases the opportunity for LAGC IFQ vessels to operate in access areas by allowing LAGC IFQ vessels to fish access area trips that would have been allocated to Closed Area II (an offshore area difficult for the LAGC fleet access) in Closed Area I (an area closer to shore). This could have potentially slight positive impacts on the resource overall by spreading effort out and providing more access in areas with higher catch rates. It also could potentially reduce total area swept since the LAGC IFQ component would have the opportunity to fish on high densities of scallops in access areas. This is expected to help reduce fishing times and lower trips costs. Further, this is expected to limit steam time and lower overall trips costs across the entire LAGC IFQ component. Alternatives to the measures in this final rule are described in detail in Framework 34, which includes an EA, RIR, and IRFA (see
Overall, this rule minimizes adverse long-term impacts by ensuring that management measures and catch limits result in sustainable fishing mortality rates that promote stock rebuilding, and as a result, maximize optimal yield. The measures implemented by this final rule also provide additional flexibility for fishing operations in the short-term.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency will publish one or more guides to assist small entities in complying with the rule and will designate such publications as “small entity compliance guides.” The agency will explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a bulletin to permit holders that also serves as a small entity compliance guide was prepared. This final rule and the guide (
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
The revisions and additions read as follows:
(k) * * *
(1)
(2) * * *
(i)
(iii)
(5)
(i) Observer service providers shall establish the daily rate for observer coverage on a scallop vessel on an Access Area trip or open area DAS or IFQ trip or NGOM trip consistent with paragraphs (k)(5)(i)(A) and (B), respectively, of this section.
(C)
(ii) NMFS shall determine any reduced DAS accrual rate and the amount of additional pounds of scallops on Sea Scallop Access Area, LAGC IFQ, and NGOM trips based on the economic conditions of the scallop fishery, as determined by best available information. Vessel owners and observer service providers shall be notified through the Small Entity Compliance Guide of any DAS accrual rate changes and any changes in additional pounds of scallops determined by the Regional Administrator to be necessary. NMFS shall notify vessel owners and observer providers of any adjustments.
(6)
(g)
(h)
(a) * * *
(7)
(9)
(b) * * *
(1)
(3)
(a) * * *
(2)
(3)
(b) * * *
(3)
(B) The following access area allocations and possession limits for limited access vessels shall be effective for the 2022 and 2023 fishing years:
(
(
(
(
(
(
(ii)
(
(B)
(c)
(e)
(1) 2022: Nantucket Lightship-South-Deep, Closed Area I, and Closed Area II Scallop Rotational Areas.
(i) For fishing year 2022, vessels may only harvest RSA compensation from Closed Area II from June 1, 2022 through August 14, 2022.
(ii) [Reserved]
(2) 2023: No access areas.
(g) * * *
(3) * * *
(v)
The additions read as follows:
(i)
(j)
8. In § 648.62:
The revisions read as follows:
(a) * * *
(2) Scallop landings by vessels issued NGOM permits shall be deducted from the NGOM Set-Aside, as defined in § 648.53(a)(8)(iii), and specified in paragraph (b)(1) of this section, when vessels fished all or part of a trip in the Federal waters portion of the NGOM. If a vessel with a NGOM scallop permit
(3) Scallop landings by all vessels issued LAGC IFQ scallop permits and fishing in the NGOM scallop management area against the NGOM Set-Aside, as defined in § 648.53(a)(8)(iii), shall be deducted from NGOM Set-Aside specified in paragraph (b)(1) of this section. Scallop landings by LAGC IFQ scallop vessels fishing in the NGOM scallop management area shall be deducted from their respective scallop IFQs. Landings by vessels with incidental permits shall not be deducted from the NGOM total allowable catch specified in paragraph (b) of this section.
(5) Scallop landings by all vessels issued scallop permits and fishing in the NGOM under the scallop RSA program (as specified in § 648.56) shall be deducted from the overall RSA allocation.
(b)
(2) Unless a vessel has fished for scallops outside of the NGOM scallop management area and is transiting the NGOM scallop management area with all fishing gear stowed and not available for immediate use as defined in § 648.2, no vessel issued an LAGC scallop permit pursuant to § 648.4(a)(2) may possess, retain, or land scallops in the NGOM scallop management area once the Regional Administrator has provided notification in the
(3) If the NGOM Set-Aside is exceeded, the amount of NGOM scallop landings in excess of the NGOM Set-Aside specified in paragraph (b)(1) of this section shall be deducted from the NGOM Set-Aside for the subsequent fishing year, or, as soon as practicable, once scallop landings data for the NGOM management area is available.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by catcher/processors using hook-and-line (HAL) gear in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the A season allowance of the 2022 Pacific cod total allowable catch (TAC) apportioned to catcher/processors using HAL gear in the Central Regulatory Area of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), March 25, 2022, through 1200 hours, A.l.t., June 10, 2022.
Obren Davis, 907–586–7241.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The A season allowance of the 2022 Pacific cod TAC apportioned to catcher/processors using HAL gear in the Central Regulatory Area of the GOA is 602 metric tons (mt) as established by the final 2022 and 2023 harvest specifications for groundfish in the GOA (87 FR 11599, March 2, 2022).
In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2022 Pacific cod TAC apportioned to catcher/processors using HAL gear in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 592 mt and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher/processors using HAL gear in the Central Regulatory Area of the GOA.
While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by catcher/processors using HAL gear in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 24, 2022.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reallocation.
NMFS is reallocating the projected unused amount of Pacific cod from vessels using jig gear to catcher vessels less than 60 feet (18.3 meters) length overall using hook-and-line or pot gear in the Bering Sea and Aleutian Islands management area. This action is necessary to allow the A season apportionment of the 2022 total allowable catch of Pacific cod to be harvested.
Effective March 25, 2022, through 2400 hours, Alaska local time (A.l.t.), December 31, 2022.
Krista Milani, 907–581–2062.
NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The A season apportionment of the 2022 Pacific cod total allowable catch (TAC) specified for vessels using jig gear in the BSAI is 1,127 metric tons (mt) as established by the final 2022 and 2023 harvest specifications for groundfish in the BSAI (87 FR 11626, March 2, 2022).
The 2022 Pacific cod TAC allocated to catcher vessels less than 60 feet (18.3 meters (m)) length overall (LOA) using hook-and-line or pot gear in the BSAI is 2,671 mt as established by final 2022 and 2023 harvest specifications for groundfish in the BSAI (87 FR 11626, March 2, 2022).
The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that jig vessels will not be able to harvest 1,075 mt of the A season apportionment of the 2022 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(
The harvest specifications for 2022 Pacific cod included in the final 2022 and 2023 harvest specifications for groundfish in the BSAI (87 FR 11626, March 2, 2022) are revised as follows: 52 mt to the A season apportionment and 804 mt to the annual amount for vessels using jig gear, and 3,746 mt to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Pacific cod specified from jig vessels to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 18, 2022.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
16 U.S.C. 1801
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking and request for comment.
The Energy Policy and Conservation Act, as amended (“EPCA”), prescribes energy conservation standards for various consumer products and certain commercial and industrial equipment, including small, large, and very large commercial package air conditioning and heating equipment, of which air cooled, three-phase, small commercial air conditioners and heat pumps with a cooling capacity of less than 65,000 Btu/h and air-cooled, three-phase, variable refrigerant flow air conditioners and heat pumps with a cooling capacity of less than 65,000 Btu/h are categories. EPCA requires the U.S. Department of Energy (“DOE” or “the Department”) to consider the need for amended standards each time the relevant industry standard is amended with respect to the standard levels or design requirements applicable to that equipment, or periodically under a six-year-lookback review provision. For the three-phase equipment that is the subject of this notice of proposed rulemaking (“NOPR”), DOE is proposing amended energy conservation standards that rely on new efficiency metrics and align with amended efficiency levels in the industry standard. DOE has preliminarily determined that it lacks clear and convincing evidence required by the statute to adopt standards more stringent than the levels specified in the industry standard. This NOPR also announces a webinar to receive comment on these proposed standards and associated analyses and results.
Comments regarding the likely competitive impact of the proposed standard should be sent to the Department of Justice contact listed in the
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
1.
2.
No telefacsimiles (“faxes”) will be accepted. For detailed instructions on submitting comments and additional information on this process, see section VII of this document.
Although DOE has routinely accepted public comment submissions through a variety of mechanisms, including postal mail and hand delivery/courier, the Department has found it necessary to make temporary modifications to the comment submission process in light of the ongoing COVID–19 pandemic. DOE is currently suspending receipt of public comments via postal mail and hand delivery/courier. If a commenter finds that this change poses an undue hardship, please contact Appliance Standards Program staff at (202) 586–1445 to discuss the need for alternative arrangements. Once the COVID–19 pandemic health emergency is resolved, DOE anticipates resuming all of its regular options for public comment submission, including postal mail and hand delivery/courier.
The docket web page can be found at
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Office of Energy Efficiency and Renewable Energy following the instructions at
EPCA requires the U.S. Attorney General to provide DOE a written determination of whether the proposed standard is likely to lessen competition. The U.S. Department of Justice Antitrust Division invites input from market participants and other interested persons with views on the likely competitive impact of the proposed standard. Interested persons may contact the Antitrust Division at
Ms. Catherine Rivest, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE–5B, 1000 Independence Avenue SW, Washington,
Ms. Kristin Koernig, U.S. Department of Energy, Office of the General Counsel, GC–33, 1000 Independence Avenue SW, Washington, DC 20585–0121. Telephone: (202) 586–3593. Email:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact the Appliance and Equipment Standards Program staff at (202) 287–1445 or by email:
Title III, Part C
Pursuant to EPCA, DOE is required to consider amending the energy efficiency standards for certain types of covered commercial and industrial equipment, including the equipment at issue in this document, whenever the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (“ASHRAE”) amends the standard levels or design requirements prescribed in ASHRAE 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings,” (“ASHRAE 90.1”), and at a minimum, every 6 years (42 U.S.C. 6313(a)(6)(A)–(C)). For each type of equipment, EPCA directs that if ASHRAE 90.1 is amended, DOE must adopt amended energy conservation standards at the new efficiency level in ASHRAE 90.1, unless clear and convincing evidence supports a determination that adoption of a more-stringent efficiency level would produce significant additional energy savings and be technologically feasible and economically justified (42 U.S.C. 6313(a)(6)(A)(ii) (referred to as the “ASHRAE trigger”)). If DOE adopts an amended uniform national standard at the efficiency level specified in the amended ASHRAE 90.1, DOE must establish such standard no later than 18 months after publication of the amended industry standard. (42 U.S.C. 6313(a)(6)(A)(ii)(I)) If DOE determines that a more-stringent standard is appropriate under the statutory criteria, DOE must establish such a more-stringent standard no later than 30 months after publication of the revised ASHRAE 90.1. (42 U.S.C. 6313(a)(6)(B)(i))
Under EPCA, DOE must also review its energy conservation standards for three-phase, less than 65,000 Btu/h ACUAC, ACUHP, and VRF equipment every six years and either: (1) Issue a notice of determination that the standards do not need to be amended, as adoption of a more-stringent level under the relevant statutory criteria is not supported by clear and convincing evidence; or (2) issue a notice of proposed rulemaking including new proposed standards based on certain criteria and procedures in subparagraph (B).
ASHRAE officially released the 2019 version of Standard 90.1 (“ASHRAE 90.1–2019”) on October 25, 2019, thereby triggering DOE's previously referenced obligations, pursuant to EPCA, to determine for certain classes of three-phase, less than 65,000 Btu/h ACUAC, ACUHP, and VRF systems whether: (1) The amended industry standard should be adopted; or (2) clear and convincing evidence exists to justify more-stringent standard levels. For any classes where DOE was not triggered by ASHRAE 90.1–2019, the Department routinely considers those classes under EPCA's six-year-lookback provision at the same time to address the subject equipment in a comprehensive fashion.
The current Federal energy conservation standards for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs and three-phase, less than 65,000 Btu/h VRF are codified in DOE's regulations at 10 CFR 431.97. These standards for both equipment types are specified in terms of seasonal energy
As set forth in ASHRAE 90.1–2019, the efficiency levels for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs are specified in terms of seasonal energy efficiency ratio-2 (“SEER2”) for cooling mode and heating seasonal performance factor-2 (“HSPF2”) for heating mode. These efficiency levels are measured per ANSI/AHRI 210/240, “
DOE is also proposing definitions for space-constrained (“S–C”) commercial package air conditioning and heating equipment (“S–C ACUACs and ACUHPs”) and for small-duct, high-velocity (“SDHV”) commercial package air conditioning and heating equipment (“SDHV ACUACs and ACUHPs”) as described in section V.C. Additionally, DOE is proposing to separate equipment classes and corresponding energy conservation standards for three-phase, less than 65,000 Btu/h ACUAC and ACUHP that are (1) S–C split-system ACUACs; (2) S–C split-system ACUHPs; (3) S–C single-package ACUACs; (4) S–C single-package ACUHPs; (5) SDHV ACUACs; and (6) SDHV ACUHPs. These additional equipment classes are included in ASHRAE 90.1–2019 for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs.
As described in detail in section III of this document, DOE conducted a crosswalk analysis to translate the current SEER and HSPF standards (measured per the current DOE test procedure) to SEER2 and HSPF2 levels, respectively (measured per the latest version of AHRI Standard AHRI 210/240 (
In this document, DOE proposes to update the minimum energy conservation standard levels found at Tables 3, 4, and 13 of 10 CFR 431.97. The proposed standards for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs and for three-phase, less than 65,000 Btu/h VRF systems, which are expressed in SEER2 and HSPF2, are presented in Table I–1 and Table I–2.
As described in section V of this document, DOE has tentatively determined that insufficient data are available to determine, based on clear and convincing evidence, that more-stringent standards would result in significant additional energy savings and be technologically feasible and economically justified. The clear and convincing threshold is a heightened standard, and would only be met where the Secretary has an abiding conviction, based on available facts, data, and DOE's own analyses, that it is highly probable an amended standard would result in a significant additional amount of energy savings, and is technologically feasible and economically justified.
DOE normally performs multiple in-depth analyses to determine whether there is clear and convincing evidence to support more stringent energy conservation standards (
For S–C ACUACs and ACUHPs and SDHV ACUACs and ACUHPs, DOE has tentatively concluded that the levels specified in ASHRAE 90.1–2019 are less stringent than the applicable current Federal standards. Therefore, to avoid backsliding (as required by EPCA),
For three-phase, less than 65,000 Btu/h VRF equipment, ASHRAE 90.1–2019 did not update the efficiency metrics to be in terms of SEER2 and HSPF2 and instead left the metrics in terms of SEER and HSPF with no change to efficiency levels. In this document, DOE is proposing translated standard levels in terms of SEER2 and HSPF2 that are of equivalent stringency to the current SEER and HSPF Federal standards.
The following section briefly discusses the statutory authority underlying this proposed rule, as well as some of the relevant historical background related to the establishment of standards for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs and three-phase, less than 65,000 Btu/h VRF.
EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part C of EPCA, added by Public Law 95–619, Title IV, section 441(a) (42 U.S.C. 6311–6317, as codified), established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve energy efficiency for covered equipment. This covered equipment includes small, large, and very large commercial package air conditioning and heating equipment, including three-phase, less than 65,000 Btu/h ACUACs and ACUHPs and three-phase, less than 65,000 Btu/h VRF, the subject of this document. (42 U.S.C. 6311(1)(B)–(D)) Additionally, DOE must consider amending the energy efficiency standards for certain types of commercial and industrial equipment, including the equipment at issue in this document, whenever ASHRAE amends the standard levels or design requirements prescribed in ASHRAE/IES Standard 90.1, and, at a minimum, every 6 years. (42 U.S.C. 6313(a)(6)(A)–(C))
The energy conservation program under EPCA consists essentially of four parts: (1) Testing, (2) labeling, (3) the establishment of Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6311), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6316; 42 U.S.C. 6296).
Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (
Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product. (42 U.S.C. 6314) Manufacturers of covered equipment must use the Federal test procedures as the basis for: (1) Certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(b); 42 U.S.C. 6296), and (2) making representations about the efficiency of that equipment (42 U.S.C. 6314(d)). Similarly, DOE uses these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA. The DOE test procedures for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs and for three-phase, less than 65,000 Btu/h VRF appear at 10 CFR 431, subpart F, appendix A.
ASHRAE 90.1 sets industry energy efficiency levels for small, large, and very large commercial package air-conditioning and heating equipment, packaged terminal air conditioners, packaged terminal heat pumps, warm air furnaces, packaged boilers, storage water heaters, instantaneous water heaters, and unfired hot water storage tanks (collectively “ASHRAE equipment”). For each type of listed ASHRAE equipment, EPCA directs that if ASHRAE amends Standard 90.1, DOE must adopt amended standards at the new ASHRAE efficiency level, unless DOE determines, supported by clear and
Under EPCA, DOE must also review energy efficiency standards for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs and three-phase, less than 65,000 Btu/h VRF every six years and either: (1) Issue a notice of determination that the standards do not need to be amended as adoption of a more stringent level is not supported by clear and convincing evidence; or (2) issue a notice of proposed rulemaking including new proposed standards based on certain criteria and procedures in subparagraph (B). (42 U.S.C. 6313(a)(6)(C))
In deciding whether a more-stringent standard is economically justified, under either the provisions of 42 U.S.C. 6313(a)(6)(A) or 42 U.S.C. 6313(a)(6)(C), DOE must determine whether the benefits of the standard exceed its burdens. DOE must make this determination after receiving comments on the proposed standard and by considering, to the maximum extent practicable, the following seven factors:
(1) The economic impact of the standard on manufacturers and consumers of products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered equipment that are likely to result from the standard;
(3) The total projected amount of energy savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the covered product likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy conservation; and
(7) Other factors the Secretary of Energy considers relevant.
(42 U.S.C. 6313(a)(6)(B)(ii)(I)–(VII))
EPCA defines “commercial package air conditioning and heating equipment” as air-cooled, water-cooled, evaporatively-cooled, or water-source (not including ground water source) electrically operated, unitary central air conditioners and central air conditioning heat pumps for commercial application. (42 U.S.C. 6311(8)(A); 10 CFR 431.92) EPCA further classifies “commercial package air conditioning and heating equipment” into categories based on cooling capacity (
The energy conservation standards for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs were most recently amended through a final rule for energy conservation standards and test procedures for certain commercial HVAC and water heating equipment published in the
DOE's current energy conservation standards for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs are codified at Tables 1 and 2 of 10 CFR 431.97. The current equipment classes are differentiated by configuration (split system or single package) and by heating capability (air conditioner or heat pump) and repeated in Table II–1 of this document.
Pursuant to its authority under EPCA (42 U.S.C. 6313(a)(6)(A)) and in response to updates to ASHRAE Standard 90.1, DOE has established the category of VRF multi-split systems, which meets the EPCA definition of “commercial package air conditioning and heating equipment,” but which EPCA did not expressly identify.
DOE defines “variable refrigerant flow air conditioner” as a unit of commercial package air-conditioning and heating equipment that is configured as a split system air conditioner incorporating a single refrigerant circuit, with one or more outdoor units, at least one variable-speed compressor or an alternate compressor combination for varying the capacity of the system by three or more steps, and multiple indoor fan coil units, each of which is individually metered and individually controlled by an integral control device and common communications network and which can operate independently in response to multiple indoor thermostats. Variable refrigerant flow implies three or more steps of capacity control on common, inter-connecting piping. 10 CFR 431.92.
DOE defines “variable refrigerant flow multi-split heat pump” as a unit of commercial package air-conditioning and heating equipment that is configured as a split system heat pump that uses reverse cycle refrigeration as its primary heating source and which may include secondary supplemental heating by means of electrical resistance, steam, hot water, or gas. The equipment incorporates a single refrigerant circuit, with one or more outdoor units, at least one variable-speed compressor or an alternate compressor combination for varying the capacity of the system by three or more steps, and multiple indoor fan coil units, each of which is individually metered and individually controlled by a control device and common communications network and which can operate independently in response to multiple indoor thermostats. Variable refrigerant flow implies three or more steps of capacity control on common, inter-connecting piping. 10 CFR 431.92.
DOE adopted energy conservation standards for VRF multi-split systems in a final rule published on May 16, 2012 (May 2012 Final Rule). 77 FR 28928. When determining the appropriate standard levels, DOE considered updates to the 2010 edition of ASHRAE Standard 90.1 (“ASHRAE 90.1–2010”), which designated separate equipment classes for VRF multi-split systems for the first time.
DOE's current equipment classes for three-phase, less than 65,000 Btu/h VRF are differentiated only by refrigeration cycle (air conditioners or heat pumps). DOE's current standards for VRF multi-split systems are set forth at Table 13 to 10 CFR 431.97 and repeated in Table II–2 of this document.
As previously discussed, ASHRAE released ASHRAE 90.1–2019 on October 25, 2019, which updated the test procedure references for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs and for three-phase, less than 65,000 Btu/h VRF. ASHRAE 90.1–2019 also updated the efficiency metrics for less than 65,000 Btu/h ACUACs and ACUHPs from SEER and HSPF to SEER2 and HSPF2 and updated the efficiency levels for all classes to reflect the new metrics. ASHRAE 90.1–2019 did not update the efficiency metrics or efficiency levels for three-phase, less than 65,000 Btu/h VRF.
For three-phase, less than 65,000 Btu/h ACUACs and ACUHPs, the current DOE test procedure references the industry test procedure ANSI/AHRI Standard 210/240–2008 with Addenda 1 and 2,
Regarding three-phase, less than 65,000 Btu/h VRF, ASHRAE 90.1–2019 also updates the relevant industry test procedure. The current DOE test procedure references AHRI Standard 1230–2010 with Addendum 1,
DOE published a notice of data availability and request for information (“NODA/RFI”) in response to the amendments to ASHRAE 90.1–2019 in the
The energy conservation standards proposed in this document were developed in response to updates to the relevant industry test standard (
As described in the following sections, DOE presented a preliminary crosswalk in the September 2020 NODA/RFI for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs that qualitatively evaluated whether the levels presented in ASHRAE 90.1–2019 were of higher, lower, or equivalent stringency to the existing Federal standard levels. 85 FR 60642, 60662–60663 (Sept. 25, 2020). The September 2020 NODA/RFI did not consider standards for three-phase, less than 65,000 Btu/h VRF and therefore did not conduct a crosswalk translation for such equipment. In the September 2020 NODA/RFI, DOE accounted for the changes in the updated industry test standard AHRI 210/240–2023.
On January 6, 2017, DOE published a direct final rule concerning energy conservation standards for residential central air conditioners and heat pumps (“CACs and HPs”) (“January 2017 CAC/HP ECS DFR”). 82 FR 1786. The January 2017 CAC/HP ECS DFR established crosswalk translations for CACs and HPs from SEER and HSPF (measured per 10 CFR part 430, subpart B, appendix M (“Appendix M”)) to SEER2 and HSPF2 (measured per 10 CFR part 430, subpart B, appendix M1 (“Appendix M1”)). Specifically, in the January 2017 CAC/HP ECS DFR DOE established multiple SEER-to-SEER2 translations that were unique to the test conditions for each product class.
As described in the September 2020 NODA/RFI, AHRI 210/240–2023 aligns test methods and ratings to be consistent with DOE's test procedure for single-phase central air conditioners at appendix M1. 85 FR 60642, 60647 (Sept. 25, 2020). Given that three-phase equipment are generally identical to their single-phase counterparts, aside for three-phase power input, DOE presented a preliminary metric translation for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs based on the metric translation used for single-phase CAC/HPs presented in the January 2017 CAC/HP ECS DFR in the September 2020 NODA/RFI.
DOE received multiple comments in response to this preliminary crosswalk analysis in the September 2020 NODA/RFI. AHRI, Carrier, Goodman, and the Joint Advocates all commented in support of DOE's crosswalk methodology. (AHRI, No. 2 at p. 5; Carrier, No. 3 at p. 2; Goodman, No. 7 at p. 2; Joint Advocates, No. 6 at p. 2)
Because three-phase, less than 65,000 Btu/h single-package air conditioners and heat pumps have directly comparable single-phase product classes, DOE was able to utilize the same crosswalk as described in the January 2017 CAC/HP ECS DFR when evaluating the relative stringency of ASHRAE 90.1–2019 levels.
In response to the proposed crosswalk in the September 2020 NODA/RFI, Goodman requested that DOE provide specific crosswalk values for the equipment classes where DOE determined that the post-2023 levels in ASHRAE 90.1–2019 are more stringent than the current Federal standards (
As discussed, DOE conducted the crosswalk to evaluate the relative stringency of ASHRAE 90.1–2019 levels as compared to the existing Federal standards to ensure that backsliding would not result were the ASHRAE 90.1 levels adopted. Based on the crosswalk, DOE finds that it is unnecessary to provide specific crosswalk values for the two equipment classes of three-phase, split-system, less than 65,000 Btu/h ACUACs and ACUHPs for which ASHRAE 90.1–2019 increased stringency as compared to the current Federal standards.
In its preliminary crosswalk analysis in the September 2020 NODA/RFI, DOE determined that the post-2023 standards levels for S–C and SDHV equipment found in ASHRAE 90.1–2019 are less stringent than the current Federal standards for the following six equipment classes: (1) S–C, split-system ACUAC; (2) S–C, split-system ACUHP; (3) S–C, single-package ACUAC; (4) S–C, single-package ACUHP; (5) SDHV split-system ACUAC; and (6) SDHV split-system ACUHP. DOE's preliminary crosswalk showed that the crosswalked Federal standard levels for these equipment classes are qualitatively higher than the SEER2 and/or HSPF2 levels found in ASHRAE 90.1–2019, however DOE did not determine specific values for an appropriate crosswalk. In the September 2020 NODA/RFI, DOE noted that although the post-2023 values for S–C and SDHV equipment are less stringent than current Federal standards, it still intended to consider these ASHRAE classes separately in this rulemaking as part of the six-year-lookback review. 85 FR 60642, 60663 (Sept. 25, 2020).
In response to the September 2020 NODA/RFI, AHRI commented that it disagreed with DOE's preliminary determination that it could not adopt the ASHRAE 90.1–2019 standard levels for S–C ACUACs and ACUHPs and SDHV ACUACs and ACUHPs that are aligned with their single-phase counterparts. AHRI contended that these products could not meet the general levels established for three-phase equipment and urged DOE to set levels for three-phase S–C and SDHV equipment at the levels prescribed by ASHRAE 90.1–2019, which are harmonized with the single-phase equivalents for those products. AHRI further stated that it is not aware of any three-phase S–C or SDHV products on the market and speculated that S–C products are unlikely to exist because the equipment class is limited to products having capacity less than 30,000 Btu/h. (AHRI, No. 2 at p. 5)
In a NOPR published on January 8, 2015, which covered energy conservation standards for commercial HVAC equipment, including three-phase, less than 65,000 Btu/h air conditioners and heat pumps (“January 2015 ASHRAE 90.1 NOPR”), DOE stated that EPCA does not separate these six additional equipment classes from other types of small commercial package air conditioning and heating equipment in its definitions, and, therefore, EPCA's definition of “small commercial package air conditioning and heating equipment” includes SDHV and S–C air conditioners and heat pumps. 80 FR 1172, 1184. DOE reiterated this position in the September 2020 NODA/RFI. 85 FR 60642, 60662 (Sept. 25, 2020). EPCA generally directs DOE to establish amended uniform national standards for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs at the minimum levels specified in ASHRAE Standard 90.1. (43 U.S.C. 6313(a)(6)(A)(ii)(I)) As DOE has previously stated, when considering the ASHRAE trigger, DOE evaluates ASHRAE amendments at the class level. Because the six equipment classes of three-phase S–C and SDHV equipment prescribed in ASHRAE 90.1–2019 are covered as small commercial package air conditioning and heating equipment, DOE cannot propose standard levels that are any lower than the current Federal standards. However, to distinguish S–C and SDHV equipment from the three-phase, split-system, less than 65,000 Btu/h ACUACs and ACUHPs equipment for which DOE was triggered by more stringent levels in ASHRAE 90.1–2019, DOE proposes to establish six separate equipment classes of three-phase S–C and SDHV equipment with separate standard levels. Consistent with EPCA, the levels that DOE is proposing for these S–C and SDHV equipment classes maintain equivalent stringency to the current applicable Federal standards, and are therefore more stringent than the corresponding levels set forth in ASHRAE 90.1–2019.
In this document, DOE proposes to extend its preliminary crosswalk analysis for these types of equipment (the September 2020 NODA/RFI presented a qualitative discussion of relative stringency) and propose specific efficiency levels in terms of SEER2 and HSPF2 that are crosswalked from the existing Federal standards for small commercial package air conditioning and heating equipment. DOE developed a crosswalk for S–C, split-system, and single-package ACUACs and ACUHPs and SDHV ACUACs and ACUHPs by
Single-phase S–C air conditioners, which are not further separated into split-systems and single-package systems, have a DOE minimum SEER of 12 that was translated to 11.7 SEER2. 82 FR 1786, 1848–1849 (Jan. 6, 2017). Single-phase S–C heat pumps also have a minimum SEER of 12, but the January 2017 CAC/HP ECS DFR established a different translated SEER2 of 11.9.
With regards to the translation from HSPF to HSPF2 for S–C ACUACs and ACUHPs, DOE is proposing to use the same 15 percent reduction from the January 2017 CAC/HP ECS DFR when translating from HSPF to HSPF2 at an equivalent stringency. Because the changes to the heating load line between AHRI 210/240–2008 and AHRI 210/240–2023 are equivalent to the changes in the heating load line between appendix M and appendix M1, DOE has tentatively concluded that utilizing the same HSPF2 translation from single-phase CACs and HPs is appropriate for S–C ACUACs and ACUHPs.
For single-phase SDHV CACs and HPs, there is no increase in external static pressure requirements in appendix M1 as compared to appendix M. Consequently, in the January 2017 CAC/HP ECS DFR, there was no decrease in numerical value when translating standards from SEER to SEER2. 82 FR 1786, 1848–1849 (Jan. 6, 2017). Given that the test procedures for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs are aligned with the test procedures for single-phase CACs and HPs, there are also no increases in external static pressure requirements for SDHV ACUACs and ACUHPs in AHRI 210/240–2023. Therefore, DOE is proposing no decrement when translating from SEER to SEER2 for SDHV ACUACs and ACUHPs.
For the heating mode for SDHV ACUHPs, DOE is proposing to use the same 15 percent reduction from the January 2017 CAC/HP ECS DFR when translating from HSPF to HSPF2.
The current DOE test procedure for VRF multi-split systems (including three-phase, less than 65,000 Btu/h VRF) references AHRI 1230–2010 with addendum 1. For three-phase, less than 65,000 Btu/h VRF, AHRI 1230–2010 is used to calculate cooling and heating efficiency in terms of the SEER and HSPF metrics, respectively. In May 2021, AHRI published AHRI 1230–2021, which excludes from its scope three-phase, less than 65,000 Btu/h VRF. Accordingly, in the December 2021 Three-Phase TP NOPR, DOE proposed to remove its reference to AHRI 1230–2010 and instead to reference AHRI 210/240–2023 in the test procedure for three-phase, less than 65,000 Btu/h VRF. 86 FR 70316, 70321–70322 (Dec. 9, 2021). In that proposed rule, DOE noted that AHRI 210/240–2023 includes in its scope three-phase, less than 65,000 Btu/h VRF systems and harmonizes with the updated Federal test method for single-phase central air conditioners and central air conditioning heat pumps with rated cooling capacities of less than 65,000 Btu/h (
To translate the existing SEER and HSPF levels to SEER2 and HSPF2 levels with equivalent stringency, DOE conducted a crosswalk analysis. As described in section III.B, there are several classes of three-phase, less than 65,000 Btu/h CUACs and CUHPs for which DOE was able to apply identical crosswalk methodologies as were used for corresponding product classes of single-phase residential CACs and HPs in the January 2017 CAC/HP ECS DFR. However, there are not separate product classes for single-phase, residential, multi-split CACs and HPs (the consumer products that correspond to three-phase, less than 65,000 Btu/h VRF). Therefore, DOE could not rely on existing analysis specific to multi-split systems from the January 2017 CAC/HP ECS DFR and instead conducted an analytical crosswalk by evaluating changes in the test procedure between AHRI 1230–2010 and AHRI 210/240–2023. Additionally, DOE is not aware of any models of three-phase, less than 65,000 Btu/h VRF currently on the market.
When deciding how to translate SEER to SEER2 for three-phase, less than 65,000 Btu/h VRF, DOE considered the external static pressure testing requirements in AHRI 1230–2010 and AHRI 210/240–2023. While DOE is not aware of the existence of any models of three-phase, less than 65,000 Btu/h VRF, the Department expects that, should they exist, the most common configuration would likely be non-ducted indoor units, similar to other categories of VRF systems (
With regards to the translation from HSPF to HSPF2 for three-phase, less than 65,000 Btu/h VRF, DOE is proposing to use the same 15 percent reduction from the January 2017 CAC/HP ECS DFR when translating from HSPF to HSPF2 at an equivalent stringency. Because the changes to the heating load line between AHRI 1230–2010 and AHRI 210/240–2023 are equivalent to the changes in the heating load line between appendix M and appendix M1, DOE has tentatively concluded that utilizing the same HSPF2 translation from single-phase CACs and HPs is appropriate for three-phase, less than 65,000 Btu/h VRF.
DOE conducted the crosswalk discussed in section III.B of this document to translate the current Federal standards to the SEER2 and HSPF2 metrics and determine whether the levels specified in ASHRAE 90.1–2019 represent more, less, or equivalent stringency as compared to the current Federal standards. DOE's crosswalk results for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs and for three-phase, less than 65,000 Btu/h VRF are presented in Table III–1
As required under 42 U.S.C. 6313(a)(6)(A)(i), for three-phase, less than 65,000 Btu/h CUAC equipment classes for which ASHRAE 90.1–2019 set more stringent levels than the current Federal standards, DOE performed an assessment to determine the energy-savings potential of amending Federal standard levels to reflect the efficiency levels specified in ASHRAE 90.1–2019. The two equipment classes analyzed in the September 2020 NODA/RFI were air-cooled, three-phase, split-system, less than 65,000 Btu/h air conditioners and air-cooled, three-phase, split-system, less than 65,000 Btu/h heat pumps. In the September 2020 NODA/RFI, DOE presented the methodology to determine energy savings along with the findings of the energy savings potential for the two equipment classes and sought comment on the analysis. 85 FR 60642, 60666–60673 (Sep. 25, 2020).
In response to the September 2020 NODA/RFI, AHRI and Carrier supported DOE's approach to develop unit energy consumption, shipments, and the no-new standards efficiency distributions that were used to estimate the energy savings potential of air-cooled, three-phase, split-system air conditioners and heat pumps less than 65,000 Btu/h. (AHRI, No. 2, at pp. 5–6; Carrier, No. 3 at pp. 2–3) However, AHRI, Carrier, and Goodman all disagreed with DOE's approach to equipment lifetime. (AHRI, No. 2, at p. 6; Carrier, No. 3 at p. 3; Goodman, No. 7 at p. 2) AHRI stated that DOE should use the average lifetime of 18.4 years for central air conditioners and 15.2 years for heat pumps stated in the January 2016 Final Rule for small, large, and very large commercial package air conditioning and heating equipment. (AHRI, No. 2 at p. 6) Carrier stated that the lifetime is overestimated and suggested a range of 10 to 15 years (Carrier, No. 3 at p. 3) Goodman suggested using a lifetime that is lower than the single-phase lifetime, such as 15 years, because three-phase products are typically installed in commercial applications and thus operate more hours per year and at more extreme conditions, resulting in a shorter lifetime. (Goodman, No. 7 at p. 2)
In its analysis for this NOPR, DOE did not make any changes to the inputs into the energy savings analysis that was presented in the September 2020 NODA/RFI, including the average lifetimes of 19 years for air conditioners and 16.2 years for heat pumps. First, DOE notes that the average lifetimes cited by AHRI are from the September 30, 2014 NOPR and not the January 15, 2016 final rule.
The significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking. 86 FR 70892, 70901 (Dec. 13, 2021) For example, the United States rejoined the Paris Agreement on February 19, 2021. As part of that agreement, the United States has committed to reducing GHG emissions in order to limit the rise in mean global temperature. As such, energy savings that reduce GHG emissions have taken on greater importance. Additionally, some covered products and equipment have most of their energy consumption occur during periods of peak energy demand. The impacts of these products on the energy infrastructure can be more pronounced than products with
DOE conducted an analysis of the emissions reductions at the ASHRAE efficiency level for air-cooled, three-phase, split-system, less than 65,000 Btu/h air conditioners and air-cooled, three-phase, split-system, less than 65,000 Btu/h heat pumps. This emissions analysis consists of two components. The first component estimates the effect of potential energy conservation standards on power sector combustion emissions of CO
As discussed, ASHRAE 90.1–2019 includes efficiency levels more stringent than the current Federal standards for three-phase, split-system, less than 65,000 Btu/h ACUACs and ACUHPs. When triggered by an update to ASHRAE Standard 90.1, EPCA requires DOE to establish an amended uniform national standard for equipment classes at the minimum level specified in the amended ASHRAE Standard 90.1 unless DOE determines, by rule published in the
In the September 2020 NODA/RFI, DOE did not consider more stringent efficiency levels, as this would require DOE to crosswalk the entire market for this equipment. 85 FR 60642, 60674 (Sept. 25, 2020) The amended levels in ASHRAE 90.1–2019 rely on updated metrics (SEER2 and HSPF2), which are not applicable until 2023. Furthermore, the single-phase market, which is nearly identical to three-phase equipment, will not begin to use SEER2 and HSPF2 until 2023. Single-phase and three-phase models generally are manufactured on the same production lines and are physically identical to their corresponding single-phase central air conditioner and central air conditioning heat pump models except the former have three-phase electrical systems and use components, primarily motors and compressors, that are designed for three-phase power input. 86 FR 70316, 70322 (Dec. 9, 2021). The amended levels for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs in ASHRAE 90.1–2019 are the same efficiency levels that will be required for single-phase air conditioners and heat pumps in 2023 (
EPCA states that in order for DOE to adopt a standard more stringent than an amended ASHRAE 90.1 standard, DOE must support its decision with clear and convincing evidence. In the September 2020 NODA/RFI, DOE tentatively determined that the lack of market data for the amended efficiency metric creates substantial doubt in any analysis of energy savings that would result from efficiency levels more stringent than those in ASHRAE 90.1–2019 given the 2023 compliance date. 85 FR 60642, 60674 (Sept. 25, 2020) Therefore, DOE did not conduct any analysis of energy savings from more stringent standards for the two triggered classes of three-phase, split-system, less than 65,000 Btu/h ACUACs and ACUHPs. DOE requested data and information that would enable it to determine whether more stringent standards would result in significant energy savings for the two triggered equipment classes in the September 2020 NODA/RFI.
In response to the September 2020 NODA/RFI, AHRI and Rheem commented in support of generally adopting the amended ASHRAE 90.1–2019 standard levels for all classes of three-phase, less than 65,000 Btu/h ACUACs and ACUHPs as the national standards (AHRI, No. 2 at p. 1; Rheem, No. 4 at p. 1) However, AHRI stated that it did not have any data that it could provide to DOE to develop more stringent efficiency levels and supported harmonization with the ASHRAE 90.1–2019 levels. (AHRI, No. 2 at p. 6)
Similarly, Carrier commented that it had no data that would suggest that efficiency levels more stringent than ASHRAE 90.1–2019 would result in additional energy savings for classes where DOE is triggered. (Carrier, No. 3 at p. 3)
Conversely, Joint Advocates and CA IOUs encouraged DOE to evaluate more-stringent standards than the ASHRAE 90.1–2019 levels and said that they disagreed with DOE's preliminary conclusion in the September 2020 NODA/RFI that the test metric change created uncertainty that would prevent an adequate evaluation of more stringent standards. (Joint Advocates, No. 6 at pp. 2, 3–4; CA IOUs, No. 5 at p. 2) These commenters asserted that only when economic analyses are complete can the determination be made as to whether the statutory “clear and convincing evidence” requirement has been met.
CA IOUs requested that DOE complete an analysis using information from the Compliance and Certification Management System (“CCMS”) database, noting that the maximum SEER rating in the database has increased since the previous final rule (
Likewise, the Joint Advocates stated that it is not unprecedented for DOE to adopt amended standards at levels higher than the ASHRAE Standard 90.1 levels based on a revised metric, referencing a prior standards rulemaking for ACUACs in which DOE adopted integrated energy efficiency ratio (“IEER”) standards at levels that were more stringent than the corresponding ASHRAE 90.1 levels in a 2016 direct final rule (81 FR 2420 (Jan. 15, 2016)). (Joint Advocates, No. 6 at p. 4)
In response to the comments from Joint Advocates and CA IOUs, DOE notes that it makes determinations pursuant to the ASHRAE trigger (and the six-year look back review) by evaluating the information and data available specific to the equipment under review. In this NOPR, DOE is not making a general determination on whether the clear and convincing threshold can be met in instances in which there is a metric change. The preliminary position taken in the September 2020 NODA/RFI and in this NOPR on whether the clear and convincing evidence requirement for showing that more stringent standards would result in significant additional energy savings is specific to three-phase, less than 65,000 Btu/h ACUACs and ACUHPs. As suggested by CA IOUs, DOE makes this determination on a case-by-case basis. As to the concern that the preliminary determination put forward in this NOPR may cause some members of the ASHRAE Standard 90.1 committee to be less likely to support updates to industry test procedures, DOE notes that EPCA requires DOE to review periodically the test procedures for covered equipment and make amendments to the extent justified. (42 U.S.C. 6314(a)(1))
As discussed in the September 2020 NODA/RFI, an estimation of energy savings potentials of energy efficiency levels more stringent than the amended ASHRAE 90.1 levels would require developing efficiency data for the entire three-phase, less than 65,000 Btu/h ACUACs and ACUHPs market in terms of the SEER2 and HSPF2 metrics. 85 FR 60642, 60674 (Sept 25, 2020). Because there are minimal market efficiency data currently available in terms of SEER2 and HSPF2, this would require a crosswalk analysis much broader than the analysis used to evaluate ASHRAE 90.1–2019 levels.
Because of the lack of market data and the test metric change, DOE has tentatively determined that it lacks clear and convincing evidence that a more stringent standard level would result in significant additional conservation of energy and is technologically feasible and economically justified. Therefore, DOE has tentatively decided not to conduct further analysis for this particular rulemaking because DOE lacks the data necessary to assess potential energy conservation. Although
In this specific instance, DOE disagrees with comments from CA IOUs and Joint Advocates that the statutory clear and convincing evidence criterion can only be assessed after full economic analyses have been conducted. EPCA requires that DOE determine, supported by clear and convincing evidence, that adoption of a uniform national standard more stringent than the amended ASHRAE 90.1 for three-phase, split-system, less than 65,000 Btu/h ACUACs and ACUHPs would result in significant additional conservation of energy
The CA IOUs cited as precedent the crosswalk in the January 2017 CAC/HP ECS DFR, but that crosswalk was not analogous to the present NOPR for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs. Specifically, for single-phase CACs and HPs, DOE conducted its analysis in terms of the metrics at the time, SEER and HSPF. After selecting amended efficiency levels, DOE then crosswalked the selected levels to SEER2 and HSPF2 using a methodology consistent with the recommendations of the CAC/HP Working Group. 82 FR 1786, 1849 (Jan. 6, 2017). DOE did not crosswalk the entire market for single-phase CACs and HPs—the crosswalk addressed only single-phase CAC and HPs with rated efficiency at the selected levels. Because ASHRAE 90.1–2019 included efficiency levels for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs based on SEER2 and HSPF2, DOE is unable to conduct an analysis based on SEER and HSPF metrics as it did for single-phase CACs and HPs.
Likewise, the past ACUAC rulemaking cited by the Joint Advocates as precedent was not analogous to the present situation for three-phase, split-system, less than 65,000 Btu/h ACUACs and ACUHPs, because at the time that ACUAC rulemaking began, the IEER metric was already in use by the ACUAC industry.
In contrast, during the development of this NOPR, there was no available SEER2 and HSPF2 market data. Specifically, the CCMS database and the AHRI directory do not currently rate any units with SEER2 or HSPF2 as the compliance date for these metrics is not until 2023.
After considering the stakeholder comments and the lack of sufficient SEER2 and HSPF2 market data available following the September 2020 NODA/RFI, DOE maintains its preliminary decision not to conduct additional analysis of more stringent standards for this rulemaking. The lack of market and performance data in terms of the new metric limits the analysis of energy savings that would result from efficiency levels more stringent than the amended ASHRAE 90.1–2019 levels for this equipment. Given the limits of any energy use analysis resulting from this lack of data, DOE has tentatively concluded that it lacks clear and convincing evidence that more stringent standards would result in a significant additional amount of energy savings as required for DOE to establish more-stringent standards.
As a result, DOE has tentatively determined that, due to the lack of market and performance data for the market as a whole in terms of SEER2 and HSPF2, it is unable to estimate potential energy savings from more stringent standards that meets the clear and convincing evidence threshold required by statute to justify standards more stringent than the amended ASHRAE 90.1 efficiency levels for three-phase, split-system, less than 65,000 Btu/h ACUACs and ACUHPs.
As discussed, DOE is required to conduct an evaluation of each class of covered equipment in ASHRAE Standard 90.1 every six years. (42 U.S.C. 6313(a)(6)(C)(i)) Accordingly, in this document, DOE is evaluating also the three-phase, less than 65,000 Btu/h equipment for which ASHRAE 90.1–2019 did not increase the stringency of the standards: (1) Three-phase, single package, less than 65,000 Btu/h ACUACs and ACUHPs; (2) S–C, three-phase, less than 65,000 Btu/h ACUACs and ACUHPs; (3) SDHV, three-phase, less than 65,000 Btu/h ACUACs and ACUHPs; and (4) three-phase, less than 65,000 Btu/h VRF.
As discussed in section III of this NOPR, DOE has tentatively concluded that there are no models on the market in the equipment classes of: (1) S–C, three-phase, less than 65,000 Btu/h ACUACs and ACUHPs; (2) SDHV, three-phase, less than 65,000 Btu/h ACUACs and ACUHPs; and (3) three-phase, less than 65,000 Btu/h VRF. Therefore, there would be no potential energy savings associated with more stringent standards for these classes, and DOE did not conduct further analyses of more stringent standards for these classes.
For three-phase, single package, less than 65,000 Btu/h ACUACs and ACUHPs, similar to the triggered classes discussed in section V.A of this document (
Therefore, in line with the same initial reasoning presented in DOE's evaluation of more stringent standards
On November 8, 2021, ASHRAE published the First Public Review Draft of Addendum `ay' to ASHRAE 90.1–2019 (“the first public review draft”). The first public review draft proposes to update the efficiency metrics for three-phase, less than 65,000 Btu/h VRF to be in terms of SEER2 and HSPF2 starting January 1, 2023. The first public review draft also proposes to update the test procedure for three-phase, less than 65,000 Btu/h VRF to specify AHRI 1230–2014 with addendum 1 prior to Jan 1, 2023, and then AHRI 210/240–2023 starting Jan 1, 2023.
While the proposed Addendum ay to ASHRAE 90.1–2019 includes SEER2 and HSPF2 levels for three-phase, less than 65,000 Btu/h VRF, those levels are not yet formally incorporated into an approved version of ASHRAE 90.1. As a result, DOE is not triggered by the EPCA requirement to consider adopting amended standards at the new ASHRAE efficiency level. (42 U.S.C. 6313(a)(6)(A)(ii)) Because there are no models of three-phase, less than 65,000 Btu/h VRF currently on the market, DOE tentatively finds that there would be no potential energy savings associated with adopting the levels in the first public review draft, and thus no energy savings analysis would be required. Therefore, if ASHRAE finalizes a future version of ASHRAE 90.1 that (1) publishes prior to DOE publishing a final rule for amended energy conservation standards for three-phase, less than 65,000 Btu/h VRF and (2) includes SEER2/HSPF2 levels for three-phase, less than 65,000 Btu/h VRF that are more stringent than the existing federal standards, DOE proposes that it would adopt those levels in a final rule.
ASHRAE 90.1–2019 includes S–C and SDHV equipment classes for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs. Because DOE is proposing to adopt separate standards for S–C, split-system, and single-package ACUACs and ACUHPs and SDHV ACUACs and ACUHPs, DOE is proposing the following definitions for “small-duct, high-velocity commercial package air conditioning and heating equipment” and “space-constrained commercial package and heating equipment” at 10 CFR 431.92. These two definitions align with the definitions specified in 10 CFR 430.2 for single-phase CACs and HPs, which, as discussed in section V.A, are identical to three-phase products except for the power input.
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In this proposed rule, DOE is proposing amended energy conservation standards for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs and for three-phase, less than 65,000 Btu/h VRF. The proposed amended energy conservation standards are in terms of SEER2 and HSPF2, which would align with the efficiency metrics specified in ASHRAE 90.1–2019 for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs
DOE is proposing amended energy conservation standards in terms of SEER2 and HSPF2 that generally align with the standard levels in ASHRAE 90.1–2019 for three-phase equipment with some exceptions. For three-phase, split-system, less than 65,000 Btu/h ACUACs and ACUHPs, DOE is proposing standards that align with the more stringent levels in ASHRAE 90.1–2019. For three-phase, single-package, less than 65,000 Btu/h ACUACs and ACUHPs, DOE is proposing standards that align with the levels in ASHRAE 90.1–2019, which maintain equivalent stringency to the current Federal standards. For S–C split-system and single-package ACUACs and ACUHPs, SDHV ACUACs and ACUHPs, and for three-phase, less than 65,000 Btu/h VRF, DOE is proposing standards that differ from the values specified in ASHRAE 90.1–2019. These standards are equivalent stringency to the current Federal standards but are translated to the new metrics SEER2 and HSPF2. The proposed standards are presented in Table I.1 and Table I.2 of this document.
In the September 2020 NODA/RFI, DOE discussed the potential compliance dates for amended standards for three-
In response to the September 2020 NODA/RFI, Rheem agreed that the compliance date for amended Federal standards should be January 1, 2025 for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs, based on the statutory provision by EPCA for a six-year lookback to amend uniform national standards. (Rheem, No. 4 at p. 1) Carrier, Goodman, and Trane requested that DOE align the compliance date of amended standards in terms of SEER2 and HSPF2 for three-phase equipment with the corresponding compliance date for single-phase products of January 1, 2023, arguing that discrepancy in compliance dates between single-phase products and three-phase equipment would be undesirable and confusing for consumers and manufacturers. (Carrier, No. 3 at p. 2; Goodman, No. 7 at p. 2; Trane, No. 8 at p. 2)
In response to the comments from Carrier, Goodman, and Trane, DOE notes that while there may be benefits to aligning the compliance dates for SEER2 and HSPF2 standards between single-phase products and three-phase equipment, DOE cannot prescribe a compliance date for amended standards that would violate its obligations under EPCA. As discussed, EPCA requires that DOE specify a compliance date no earlier than 2 years after the compliance date specified in ASHRAE Standard 90.1 for triggered classes of three-phase, less than 65,000 Btu/h ACUACs and ACUHPs. As a result, to provide a consistent compliance date for standards in terms of SEER2 and HSPF2 for all three-phase, less than 65,000 Btu/h equipment, DOE proposes that the amended standards proposed in this NOPR would apply for all three-phase, less than 65,000 Btu/h equipment that is manufactured on or after January 1, 2025.
Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review, 76 FR 3821 (Jan. 21, 2011), requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. DOE emphasizes as well that E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”) has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, this proposed regulatory action is consistent with these principles.
Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this proposed regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
The following sections detail DOE's IRFA for this energy conservation standards proposed rulemaking.
DOE is proposing to amend the existing DOE energy conservation standards for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs and three-phase, less than 65,000 Btu/h VRF. EPCA requires DOE to consider amending the existing Federal energy conservation standard for certain types of listed commercial and industrial equipment (generally, commercial water heaters, commercial packaged boilers, commercial air conditioning and heating equipment, and packaged terminal air conditioners and heat pumps) each time ASHRAE Standard 90.1 is amended with respect to such equipment. (42 U.S.C. 6313(a)(6)(A)) For each type of equipment, EPCA directs
EPCA requires DOE to consider amending the existing Federal energy conservation standard each time ASHRAE Standard 90.1 is amended with respect to such equipment. (42 U.S.C. 6313(a)(6)(A)) ASHRAE officially released ASHRAE 90.1–2019 on October 25, 2019, thereby triggering DOE's previously referenced obligations to determine, for certain classes of three-phase, less than 65,000 Btu/h ACUAC, ACUHP, and VRF systems, whether: (1) The amended industry standard levels should be adopted; or (2) clear and convincing evidence exists to justify more-stringent standard levels. For any class where DOE was not triggered, the Department routinely considers those classes under EPCA's 6-year-lookback provision at the same time, to address the subject equipment in a comprehensive fashion.
For manufacturers of three-phase, less than 65,000 Btu/h ACUACs and ACUHPs and three-phase, less than 65,000 Btu/h VRF, the Small Business Administration (“SBA”) has set a size threshold. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the proposed rule.
DOE reviewed the energy conservation standards proposed in this NOPR under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE relied on the Compliance Certification Database
In this NOPR, DOE proposes to:
• Adopt amended energy conservations standards for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs corresponding to the minimum efficiency levels in ASHRAE 90.1–2019. The levels are in terms of new metrics seasonal energy efficiency ratio-2 (SEER2) and heating seasonal performance factor-2 (HSPF2);
• Separate energy conservation standards for three-phase, less than 65,000 Btu/h ACUAC and ACUHP further into: (1) Three-phase, S–C, commercial split-system air conditioners (“S–C ACUACs”); (2) three-phase, S–C, commercial split-system heat pumps (“S–C ACUHPs”); (3) S–C single-package ACUACs; (4) S–C single-package ACUHPs; (5) three-phase, SDHV commercial air conditioners (“SDHV ACUACs”); and (6) three-phase, SDHV commercial heat pumps (“SDHV ACUHPs”). These additional equipment classes are included in ASHRAE 90.1–2019 for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs; and
• Adopt amended energy conservation standards for three-phase, less than 65,000 Btu/h VRF. Because the levels for this equipment were not updated in ASHRAE 90.1–2019, the proposed standards are translated from the existing Federal regulatory metrics (SEER and HSPF) to the updated metrics (SEER2 and HSPF2)—as measured per the updated industry test procedure AHRI 210/240–2023.
For S–C ACUACs and ACUHPs and SDHV ACUACs and ACUHPs, the current applicable Federal standards are more stringent than the ASHRAE 90.1–2019 levels. To avoid backsliding (as required by EPCA), DOE cannot adopt the ASHRAE 90.1–2019 levels for these classes and is therefore proposing standards for S–C ACUACs and ACUHPs and SDHV ACUACs and ACUHPs equipment in terms of SEER2 and HSPF2 that maintain equivalent stringency to the applicable current Federal standards (in terms of SEER and HSPF). Of note, DOE has tentatively concluded that there are no models of S–C ACUACs and ACUHPs and SDHV ACUACs and ACUHPs on the market.
For three-phase, single-package, less than 65,000 Btu/h ACUACs and ACUHPs as well as three-phase, less than 65,000 Btu/h VRF, the ASHRAE 90.1–2019 levels are of equivalent stringency to the current Federal standards. Therefore, DOE's proposal to adopt standards in terms of the new metrics SEER2 and HSPF2 that are crosswalked from the current Federal standards would not increase the stringency of standards.
ASHRAE 90.1–2019 includes minimum efficiency levels for three-phase, split-system, less than 65,000 Btu/h ACUACs and ACUHPs that are more stringent than the current Federal standards. DOE must adopt amended standards at the amended ASHRAE efficiency levels unless DOE determines, supported by clear and convincing evidence, that adoption of a more stringent standard would produce significant additional conservation of energy and would be technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii). Because DOE proposes no such determination, this NOPR proposes to adopt amended standards at the amended ASHRAE efficiency levels for three-phase, split-system, less than 65,000 Btu/h ACUACs and ACUHPs.
In estimating the impact to small manufacturers, DOE recognizes that manufacturers may incur conversion costs as a result of the proposed standards for three-phase, split-system, less than 65,000 Btu/h ACUACs and ACUHPs. In reviewing all commercially
DOE is not aware of any rules or regulations that duplicate, overlap, or conflict with this rule.
As EPCA requires DOE to either adopt the ASHRAE levels or to propose higher standards, DOE is limited in options to mitigate impacts to small businesses from the more stringent ASHRAE Standard 90.1 levels. DOE's proposal to adopt the more stringent levels in ASHRAE 90.1–2019 for three-phase, split-system, less than 65,000 Btu/h ACUACs and ACUHPs is the least cost option to industry.
Manufacturers subject to DOE's energy efficiency standards may apply to DOE's Office of Hearings and Appeals for exception relief under certain circumstances. Manufacturers should refer to 10 CFR part 1003 for additional details.
Manufacturers of three-phase, less than 65,000 Btu/h ACUACs and ACUHPs and three-phase, less than 65,000 Btu/h VRF must certify to DOE that their products comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test 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 three-phase, less than 65,000 Btu/h ACUACs and ACUHPs and for three-phase, less than 65,000 Btu/h VRF. 76 FR 12422 (Mar. 7, 2011); 80 FR 5099 (Jan. 30, 2015). The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (“PRA”). This requirement has been approved by OMB under OMB control number 1910–1400. Public reporting burden for the certification is estimated to average 35 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
DOE is analyzing this proposed regulation in accordance with the National Environmental Policy Act of 1969 (“NEPA”) and DOE's NEPA implementing regulations (10 CFR part 1021). DOE's regulations include a categorical exclusion for rulemakings that establish energy conservation standards for consumer products or industrial equipment. 10 CFR part 1021, subpart D, appendix B5.1. DOE anticipates that this rulemaking qualifies for categorical exclusion B5.1(b) because it is a proposed rulemaking that establishes energy conservation standards for consumer products or industrial equipment, none of the exceptions identified in categorical exclusion B5.1(b) apply, no extraordinary circumstances exist that require further environmental analysis, and it otherwise meets the requirements for application of a categorical exclusion.
E.O. 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has tentatively determined that it 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the equipment that are the subject of this proposed 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. 6316(a) and (b); 42 U.S.C. 6297) Therefore, no further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of E.O. 12988 specifically requires that executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any, (2) clearly specifies any effect on existing Federal law or regulation, (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction, (4) specifies the retroactive effect, if any, (5) adequately defines key terms, and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section
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, section 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a 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 them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at
This proposed rule does not contain a Federal intergovernmental mandate, nor is it expected to require expenditures of $100 million or more in any one year by the private sector. As a result, the analytical requirements of UMRA do not apply.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105–277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 15, 1988), DOE has determined that this proposed rule would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M–19–15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at
E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
DOE has tentatively concluded that this proposed rule, which proposes amended energy conservation standards for three-phase, less than 65,000 Btu/h ACUACs and ACUHPs and three-phase, less than 65,000 Btu/h VRF, is not a significant energy action because the proposed standards are not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on this proposed rule.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (“OSTP”), issued its Final Information Quality Bulletin for Peer Review (“the Bulletin”). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions.” 70 FR 2664, 2667.
In response to OMB's Bulletin, DOE conducted formal peer reviews of the energy conservation standards development process and the analyses that are typically used and has prepared a report describing that peer review.
The time and date for the webinar meeting are listed in the
Any person who has an interest in the topics addressed in this document, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the webinar. Such persons may submit to
Persons requesting to speak should briefly describe the nature of their interest in this rulemaking and provide a telephone number for contact. DOE requests persons selected to make an oral presentation to submit an advance copy of their statements at least two weeks before the webinar. At its discretion, DOE may permit persons who cannot supply an advance copy of their statement to participate, if those persons have made advance alternative arrangements with the Building Technologies Office. As necessary, requests to give an oral presentation should ask for such alternative arrangements.
DOE will designate a DOE official to preside at the webinar and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the webinar/public meeting. There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. anti-trust laws. After the webinar/public meeting and until the end of the comment period, interested parties may submit further comments on the proceedings and any aspect of the rulemaking.
The webinar will be conducted in an informal, conference style. DOE will present a summary of the proposals, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will permit, as time permits, other participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this proposed rulemaking. The official conducting the webinar will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the webinar.
A transcript of the webinar will be included in the docket, which can be viewed as described in the Docket section at the beginning of this document. In addition, any person may buy a copy of the transcript from the transcribing reporter.
DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. No telefacsimiles (“faxes”) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
Additionally, DOE welcomes comments on other issues relevant to the conduct of this proposed rulemaking that may not specifically be identified in this document.
The Secretary of Energy has approved publication of this notice of proposed rulemaking and request for comment.
Administrative practice and procedure, Confidential business information, Energy conservation test procedures, and Reporting and recordkeeping requirements.
This document of the Department of Energy was signed on March 23, 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
For the reasons set forth in the preamble, DOE proposes to amend part 431 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:
42 U.S.C 6291–6317; 28 U.S.C 2461 note.
(1) Has a rated cooling capacity no greater than 65,000 Btu/h;
(2) Is air-cooled; and
(3) Is paired with an indoor unit that
(i) Includes an indoor blower housed with the coil;
(ii) Is designed for, and produces, at least 1.2 inches of external static pressure when operated at the certified air volume rate of 220–350 CFM per rated ton cooling in the highest default cooling airflow-controls setting; and
(iii) When applied in the field, uses high velocity room outlets generally greater than 1,000 fpm that have less than 6.0 square inches of free area.
(1) Is air-cooled;
(2) Has a rated cooling capacity no greater than 30,000 Btu/h;
(3) Has an outdoor or indoor unit having at least two overall exterior dimensions or an overall displacement that:
(i) Is substantially smaller than those of other units that are:
(A) Currently usually installed in site-built single-family homes; and
(B) Of a similar cooling, and, if a heat pump, heating capacity;
and
(ii) If increased, would certainly result in a considerable increase in the usual
and
(4) Of a product type that was available for purchase in the United States as of December 1, 2000.
(g) Each air-cooled, three-phase, small commercial package air conditioning and heating equipment with a cooling capacity of less than 65,000 Btu/h and air-cooled, three-phase variable refrigerant flow multi-split air conditioning and heating equipment with a cooling capacity of less than 65,000 Btu/h manufactured on or after January 1, 2025, or if certifying to SEER2/HSPF2, must meet the applicable minimum energy efficiency standard level(s) set forth in Table 14 of this section.
Securities and Exchange Commission.
Proposed rule.
The Securities and Exchange Commission (“Commission”) is re-proposing amendments to remove the references to credit ratings included in certain Commission rules. The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”), among other things, requires the Commission to remove any references to credit ratings from its regulations. In one rule governing the activity of distribution participants, the Commission is proposing to remove the reference to credit ratings, substitute alternative measures of credit-worthiness, and impose related recordkeeping obligations in certain instances. In another rule governing the activity of issuers and selling security holders during a distribution, the Commission is proposing to eliminate the exception for investment-grade nonconvertible debt, nonconvertible preferred securities, and asset-backed securities.
Comments should be received on or before May 23, 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 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 the Commission's website. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at
John Guidroz, Branch Chief, Laura Gold, Special Counsel, Jessica Kloss, Attorney-Adviser, or Josephine Tao, Assistant Director, in the Office of Trading Practices, at (202) 551–5777, Division of Trading and Markets, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
The Commission is proposing to amend the existing exceptions found in 17 CFR 242.101 (“Rule 101”) and 17 CFR 242.102 (“Rule 102”) for investment-grade nonconvertible debt securities, nonconvertible preferred securities, and asset-backed securities. Specifically, the Commission is proposing to remove the requirement to qualify for the exception in each of these rules that these securities be rated investment grade by at least one nationally recognized statistical rating organization (“NRSRO”). In its place, in Rule 101, the Commission proposes to except (1) nonconvertible debt securities and nonconvertible preferred securities (collectively, “Nonconvertible Securities”) that meet a specified probability of default threshold, and (2) asset-backed securities that are offered pursuant to an effective shelf registration statement filed on the Commission's Form SF–3. In addition, the Commission is proposing to eliminate the existing exception in Rule 102 for investment-grade Nonconvertible Securities, and asset-backed securities. The Commission is also proposing amendments to 17 CFR 240.17a–4(b) (“Rule 17a–4(b)”) under the Securities Exchange Act of 1934 (“Exchange Act”) to require broker-dealers to maintain the written probability of default determination.
Title IX, Subtitle C, of the Dodd-Frank Act includes provisions regarding statutory and regulatory references to credit ratings in the Exchange Act and the rules promulgated thereunder.
In reference to the requirements in Section 939A, the Commission is proposing amendments to Rule 101 and Rule 102 to remove the existing exceptions for nonconvertible debt securities, nonconvertible preferred securities, and asset-backed securities, that are rated by at least one NRSRO, as that term is used in Rule 15c3–1 under the Exchange Act,
As a set of prophylactic anti-manipulation rules, Regulation M is designed to preserve the integrity of the securities trading markets as independent pricing mechanisms by prohibiting activities that could artificially influence the market for an offered security. Subject to exceptions, Rules 101 and 102 prohibit issuers, selling security holders, distribution participants,
The Investment Grade Exceptions are two of several exceptions to the general prohibitions of Rules 101 and 102. The Commission expressed its belief that certain securities and activities should be excepted from the prohibitions in order to allow for activities necessary for the distribution to occur; to limit adverse effects to the trading market that could result from these prohibitions absent such exceptions; and to allow conduct that is not likely to have a manipulative impact.
The Commission has previously proposed two alternatives with respect to the Investment Grade Exceptions, once in 2008 (“2008 Proposal”)
In 2008, prior to the enactment of the Dodd-Frank Act, the Commission proposed to substitute the Investment Grade Exceptions with a standard for Nonconvertible Securities based primarily on the well-known seasoned issuers (“WKSI”) concept from Rule 405 of the Securities Act of 1933 (“Securities Act”), as well as a standard for asset-backed securities that were registered on Form S–3.
In 2009, in light of the uniform opposition by commenters and continuing concern regarding the undue influence of credit ratings, the Commission reopened the comment period for the 2008 Proposal and invited comments suggesting alternative proposals to achieve the Commission's goals.
In 2011, after the Dodd-Frank Act was signed into law, the Commission issued a different proposal, which would have replaced the Investment Grade Exceptions with a standard based on the trading characteristics that the Commission believed made the exceptions apply to securities that were less prone to the type of manipulation that Regulation M seeks to prevent. The 2011 Proposal would have replaced the Investment Grade Exceptions with an exception for Nonconvertible Securities and asset-backed securities that (1) were liquid relative to the market for that asset class, (2) traded in relation to general market interest rates and yield spreads, and (3) were relatively fungible with securities of similar characteristics and interest rate yield spreads.
Almost all commenters expressed concerns about aspects of the 2011 Proposal.
One commenter suggested that the risk of manipulation is low for the securities at issue.
Commenters also suggested that unintended consequences could have resulted from the 2011 Proposal. Some suggested that, in light of the fact that transactions in Rule 144A securities are generally excepted from Rules 101 and 102,
Some commenters questioned whether Section 939A of the Dodd-Frank Act requires that the Commission change Regulation M at all,
The application of Regulation M's prohibitions to distributions of Nonconvertible Securities and asset-backed securities generally is limited because distribution participants and affiliated purchasers are restricted only from bidding for or purchasing securities that are identical in all of their terms to the security being distributed.
The Investment Grade Exceptions trace back to a 1975 no-action position taken by Commission staff regarding former Exchange Act Rule 10b–6, the predecessor to Rules 101 and 102.
While the Commission carried over its reasoning from former Exchange Act Rule 10b–6 to serve as the premise of the Investment Grade Exceptions, it did not adopt the former rule's broad application. In contrast to Regulation M's limited applicability only to distributions of securities that have identical terms, former Exchange Act Rule 10b–6 applied to distributions of “any security of the same class and series.”
Accordingly, some commenters responding to the 2008 Proposal and the 2011 Proposal stated that reliance on the Investment Grade Exceptions largely is limited to two situations. The first situation is a so-called “reopening,” which is an offering of an additional principal amount of fixed-income securities that are identical to, and fungible with, the securities that are already outstanding.
One commenter noted that, absent the Investment Grade Exceptions, underwriters would be prohibited from making a market in the distribution securities while the distribution continued.
As discussed below, the Commission is proposing to eliminate the Investment Grade Exceptions from both Rules 101 and 102. The Commission is proposing to replace the Investment Grade Exception in Rule 101 with two separate exceptions based on different standards: (1) With respect to Nonconvertible Securities, an exception that is based on a probability of default standard as an indicator of credit-worthiness, and (2) an exception for asset-backed securities that are offered pursuant to an effective shelf registration statement filed on Form SF–3.
With respect to Nonconvertible Securities, the Commission is proposing to replace the NRSRO reference currently included in Rule 101(c)(2) with a standard utilizing a specified probability of default threshold based on certain structural credit risk models (“Structural Credit Risk Models”).
As discussed above, Rule 101(c)(2) currently provides an exception for Nonconvertible Securities that are rated by at least one NRSRO in one of its generic rating categories that signifies investment grade. The Commission excepted investment grade Nonconvertible Securities from Rule 101 “based on the premise that these securities traded on the basis of their yield and credit ratings, are largely fungible and, therefore, are less likely to be subject to manipulation.”
In 1974, Robert C. Merton published a paper that provided a method, based on the Black-Scholes option pricing model,
Structural Credit Risk Models typically use measures from firm accounting statements and firm-specific and aggregate market prices. Generally, Structural Credit Risk Models require input variables to calculate an estimated probability of default for a specified horizon, including market value and volatility of the assets, as well as assumptions regarding the threshold for firm asset values, below which the equity owner would default on its obligations (“Default Point”).
As discussed above, Section 939A of the Dodd-Frank Act requires the Commission to remove any reference to or requirement of reliance on credit ratings, and to substitute in such regulations such standard of credit-worthiness as the Commission determines is appropriate for that regulation.
As discussed below in Part VIII.B, Structural Credit Risk Models calculate a probability of default that provides a measure of the credit-worthiness of an issuer of a Nonconvertible Security. The Commission preliminarily believes that the probability of default as calculated by Structural Credit Risk Models is an appropriate substitute as a standard of credit-worthiness in Rule 101(c)(2). In particular, the probability of default
The probability of default can be independently determined by Structural Credit Risk Models based on observable market events and information available on a firm's balance sheet without reliance on an investment grade credit rating by an NRSRO. Probability of default can be used to identify securities that trade based on their yield and high credit-worthiness, similar to the Nonconvertible Securities that are excepted based on the existing Investment Grade Exception, and thus would be less susceptible to the manipulation that Rule 101 is designed to prevent.
Commenters to the 2011 Proposal raised concerns regarding the 2011 Proposal that the Commission preliminarily believes are not present regarding Structural Credit Risk Models. For example, commenters were concerned that it would be impractical under the 2011 Proposal to make consistent determinations among market participants even in the same distributions and that the standard proposed in the 2011 Proposal is impractical, forward-looking, and subjective.
Under the proposed amendment to Rule 101, the exception would be available to the Nonconvertible Securities of issuers for which the probability of default, estimated as of the day of the determination of the offering pricing and over the horizon of 12 calendar months
Exceptions for investment grade rated Nonconvertible Securities existed in former Exchange Act Rule 10b–6, which preceded the adoption of Regulation M. As discussed above, Regulation M excepts securities based on their credit-worthiness as determined by an investment grade rating from a NRSRO. As noted by commenters to the 2008 Proposal and 2011 Proposal, the Investment Grade Exception has provided a bright-line test to identify securities that are less prone to the type of manipulation that Regulation M is designed to prevent.
The Commission acknowledges that a probability of default less than 0.055% could be both under- and over- inclusive in capturing the securities that are excepted under the existing Investment Grade Exception in Rule 101. As a result, the restrictions of Rule 101 would apply to certain Nonconvertible Securities that are currently excepted securities under Rule 101(c)(2). Furthermore, some securities that are not currently excepted securities under Rule 101 could become excepted securities under the proposed probability of default metric. The Commission preliminarily believes that it is appropriate to use a 0.055% threshold because even if it does not capture exactly the same set of securities covered under the existing investment grade standard, this 0.055% threshold would identify Nonconvertible Securities that are less susceptible to the manipulation that Regulation M is designed to prevent because they trade based on their yield and credit-worthiness as determined by the current financial condition of the issuer.
Rule 101(c)(2)(i) would define the term Structural Credit Risk Model to mean any commercially or publicly available model that calculates the probability that the value of the issuer may fall below the Default Point based on an issuer's balance sheet. These models, which estimate the probability of default related to the financial condition of the issuer based on the issuer's liabilities, provide a measure of credit-worthiness specific to that issuer. Additionally, the definition would include only commercially or publicly available models. The Commission understands that distribution participants, such as underwriters and broker-dealers, currently use commercially available models from various vendors to measure and manage credit risk. These commercially available vendor models estimate a probability of default based on the issuer's balance sheet information to set thresholds and market estimates of firm value and volatility. Furthermore, distribution participants can use commonly available spreadsheet software to calculate the probability of default based on publicly available models, which may be found in academic and professional journals.
We solicit comments on all aspects of this proposal. We ask that commenters provide specific reasons and information to support their views. Commenters are requested to provide empirical data, economic studies, and other factual support for their views to the extent possible.
1. Do commenters agree that the credit-worthiness of an issuer of Nonconvertible Securities reduces the risk of manipulation that Rule 101 is designed to prevent? Please explain. Is an exception based on probability of default appropriate to preserve Rule 101's anti-manipulation goals? Why or why not?
2. Should the probability of default threshold be higher than 0.055%? For example, should the probability of default threshold be 0.06%, 0.07%, or some other threshold? If so, what should the probability of the default threshold be and why?
3. Should the probability of default threshold be lower than 0.055%? For example, should the probability of default threshold be 0.05%, 0.04%, or some other threshold? If so, what should the probability of the default threshold be and why?
4. Is the 12 calendar months used to calculate the probability of default an appropriate time horizon? Or should some other time horizon be used? Please explain. For example, should it be for the term of the Nonconvertible Security? If so, what should the time horizon be to calculate the probability of default for purposes of Rule 101? Please explain.
5. Are there other models or model types besides Structural Credit Risk Models that the Rule should use to calculate the probability of default for purposes of Rule 101? If so, please provide the name of the model and provide support regarding why it would be an appropriate substitute for the Investment Grade Exception. Are there model types other than Structural Credit Risk Models that calculate a probability of default? For example, would a reduced-form model provide a probability of default calculation that would indicate a Nonconvertible Security is of such credit-worthiness that such security should be excepted from Rule 101? Please explain.
6. What challenges, if any, would there be to relying on an exception to Rule 101 based on the probability of default as calculated using Structural Credit Risk Models, as defined in Rule 101(c)(2)(i)? Is the definition of Structural Credit Risk Model clear? Should the exception list which models would be considered Structural Credit Risk Models? Is the requirement for the models to be commercially or publicly available clear, or is further guidance needed? Should the exception provide a test regarding what makes a model a Structural Credit Risk Model? For example, should the test for a Structural Credit Risk Model be limited to models published in academic or trade journals that refine the Merton (1974) Model? Please explain.
7. Is there a standard other than Structural Credit Risk Models that Rule 101 should use as a replacement for the Investment Grade Exception? If so, what other standard should proposed Rule 101(c)(2)(i) use and why?
8. Should the calculation of the probability of default in proposed Rule
9. Do commenters disagree with the Commission's preliminary belief that market participants are currently relying on vendors' widely available commercial applications based on Structural Credit Risk Models to analyze the credit quality of Nonconvertible Securities or the issuers of such security? Do distribution participants currently have access to vendor probability of default determinations? Please explain why or why not.
10. How often do distribution participants rely on the Investment Grade Exception for Nonconvertible Securities where no other exception from Rule 101 is available?
11. As discussed in Part III, the Commission understands that the Investment Grade Exception is used in limited circumstances,
12. Would the Nonconvertible Securities proposed to be excepted be more vulnerable to manipulation than the securities that meet the existing investment grade standard? Why or why not?
13. Please discuss whether and to what extent investors take into account reliance on the Investment Grade Exception for Nonconvertible Securities when making a decision to invest in such securities. Please also discuss whether, given that Rule 101 is directed at distribution participants and their affiliated purchasers, current Rule 101 poses any danger of undue reliance on NRSRO ratings.
14. Are there factors other than those identified in the proposed exception that influence the trading of Nonconvertible Securities? Are there additional requirements that the Commission should consider with respect to the proposed exception? Are there any requirements that the Commission should remove from the proposal?
15. Would persons needing to use the proposed exception have access to adequate information to determine whether a particular security meets the exception in proposed Rule 101(c)(2)(i)? Why or why not? Should the exception require the issuer's balance sheet to be audited?
16. If the exception as proposed is adopted should the Commission include a period of time for distribution participants to implement the exception based on probability of default? For example, should the exception, if adopted, include a three month, nine month or twelve month implementation period? Please explain. Should the exception, if adopted, go into effect within a short period of time after publication, such as 30-calendar days from being published in the
To implement Section 939A(b) of the Dodd-Frank Act, the Commission is, among other things, proposing to replace the existing exception provided in Rule 101(c)(2) for investment grade asset-backed securities
In 2014, the Commission adopted shelf eligibility criteria for asset-backed securities offerings registered on new Form SF–3 in part to implement Section 939A(b) of the Dodd-Frank Act.
• Delinquent assets do not constitute 20% or more, as measured by dollar volume, of the asset pool as of the measurement date;
• With respect to securities backed by certain leases, the portion of the securitized pool balance attributable to the residual value of the physical property underlying the leases does not constitute 20% or more, as measured by dollar volume, of the securitized pool balance as of the measurement date;
• A certification by the chief executive officer of the depositor is made at the time of each takedown;
• An asset review provision in the underlying transaction agreements requires review of the pool assets, upon the occurrence of certain trigger events, for compliance with the representations and warranties made with regard to those assets;
• A dispute resolution provision for repurchase requests is contained in the underlying transaction documents; and
• A disclosure provision, as required in an underlying transaction agreement, of investors' requests to communicate with other investors related to an investor's rights under the terms of the asset-backed security was received during the reporting period by the party responsible for making Form 10–D filings.
The Commission designed the shelf eligibility requirements to help ensure a certain “quality and character” in light of the requirement to reduce regulatory reliance on credit ratings.
As discussed above, Rule 101(c)(2) currently provides an exception for asset-backed securities that are rated by at least one NRSRO in one of its generic rating categories that signifies investment grade. The Commission excepted investment grade asset-backed securities from Rule 101 because such securities trade primarily on the basis of yield and credit rating.
As discussed above, in accordance with Section 939A of the Dodd-Frank Act, the Commission proposes to remove Rule 101's current exception for investment grade asset-backed securities based on NRSRO ratings. In place of that exception, the Commission is proposing a new exception in Rule 101(c)(2)(ii) for asset-backed securities that are offered pursuant to an effective shelf registration statement filed on Form SF–3. This proposed rule change, which would carry over the standard of credit-worthiness included in the Commission's Form SF–3, also helps to implement the mandate that, to the extent feasible, uniform standards of credit-worthiness be used.
The proposed rule is not based on a probability of default threshold derived from Structural Credit Risk Models with respect to asset-backed securities. An exception for asset-backed securities that is based on a probability of default threshold may be unfeasible due to the potential widespread inability of distribution participants and their affiliated purchasers to collect all of the information required to calculate the probability of default, such as the value and volatility of the assets underlying asset-backed securities. Therefore, the Commission is proposing an exception for certain asset-backed securities based on a separate standard that is more consistent with the existing Investment Grade Exception for asset-backed securities, as discussed below. The proposed rule does not contain a standard of credit-worthiness that relies on Form SF–3 with respect to Nonconvertible Securities because the transaction requirements included in Form SF–3 are relevant only to asset-backed securities. As discussed below, because the transaction requirements included in Form SF–3 serve as an indicator of credit-worthiness, the proposed exception that relies on Form SF–3 would not apply to securities that are not subject to those transaction requirements.
The proposed exception continues to be derived from the premise that certain asset-backed securities are traded based on factors such as their yield and credit-worthiness.
The Commission believes that the transaction requirements included in Form SF–3 allow for shelf offerings of only those asset-backed securities that share the qualities and characteristics of the investment grade asset-backed securities currently excepted from the provisions of Rule 101: With respect to both sets of securities, the principal focus of investors is the structure of a class of securities and the nature of the assets pooled to serve as collateral for those securities, rather than on the identity of a particular issuer.
Second, Form SF–3 includes certain transaction requirements with respect to the structure of the asset-backed security being offered. Such structural requirements include (1) a certification by the depositor's chief executive officer that, among other things, the securitization structure provides a reasonable basis to conclude that the expected cash flows are sufficient to service payments or distributions in accordance with their terms; (2) a review of the asset-backed security's pool of assets upon the occurrence of certain triggering events, including delinquencies, by a person that is unaffiliated with certain transaction parties, such as the sponsor, depositor, servicer, trustee, or any of their affiliates; and (3) a dispute resolution provision, contained in the underlying transaction documents, for any repurchase request. When adopting the requirements included in Form SF–3, the Commission stated that sponsors may have an increased incentive to carefully consider the characteristics of the assets underlying the securitization and accurately disclose these characteristics at the time of offering. The Commission also believed that investors should benefit from the reduced losses associated with nonperforming assets because, as a result of this new shelf requirement, sponsors will have less of an incentive to include nonperforming assets in the pool.
The Commission believes that the requirement regarding an effective shelf registration statement filed on Form SF–3 is an appropriate substitute for the Investment Grade Exception currently provided in Rule 101(c)(2) because the proposed standard intends to limit eligibility for that exception to only those asset-backed securities that trade based on their yield and credit-worthiness due to their particular qualities and characteristics. Because the ability of distribution participants and their affiliated purchasers to bid up the price of an asset-backed security offered pursuant to an effective Form SF–3, during a distribution, is limited by a market participant's ability to substitute the security with other securities that are similar and of comparable credit-worthiness,
We solicit comments on all aspects of this proposal. We ask that commenters provide specific reasons and information to support their views. Commenters are requested to provide empirical data, economic studies, and other factual support for their views to the extent possible.
17. How often and in which context is the Investment Grade Exception for asset-backed securities utilized where no other exception from Rule 101 is available?
18. As discussed above, the existing Investment Grade Exception for asset-backed securities and the proposed exception provided in paragraph (c)(2)(ii) of Rule 101 are premised on the ability of a market participant to substitute a security (in distribution) with other securities that are similar and of comparable credit-worthiness if there is a pricing aberration in the secondary market for similar securities. What is the universe of securities that is likely to be substituted in such instance? Please explain.
19. If the Investment Grade Exception for asset-backed securities is rarely, infrequently, or never used, or if the proposed standard for asset-backed securities has limitations in practice or otherwise, should the Commission
20. What specific trading activities that currently occur pursuant to the Investment Grade Exception would then be prohibited during the restricted period because no other exception is available? What are the advantages and disadvantages of such trading activities? Should the Commission explicitly except any such specific activities in lieu of providing a generic exception for investment grade asset-backed securities or an exception for asset-backed securities that are offered pursuant to an effective shelf registration statement filed on Form SF–3? What benefits or challenges would this approach create?
21. Should the proposed exception be expanded to apply to all asset-backed securities, such as asset-backed securities registered on Form SF–1? What activities would then be allowed that were previously prohibited under Rule 101? To what extent would these additional activities be at risk of manipulation? Why or why not?
22. Are there any types of asset-backed securities that should not be covered by the proposed exception? Please explain.
23. Would the asset-backed securities excepted in the proposal be more vulnerable to manipulation than the securities that meet the existing investment grade standard? Why or why not?
24. Is the proposal to except only asset-backed securities that are offered pursuant to an effective shelf registration statement filed on the Commission's Form SF–3 an appropriate substitute for credit ratings in this context? What effect(s), if any, would the proposed modifications to the current exception have on the market for asset-backed securities? Please explain.
25. How difficult and costly in practice would the requirements of the proposed exception be to apply? If the requirements are more difficult or costly to apply, how might this impact the scope of securities subject to the prohibitions of Regulation M? For example, to what extent, if any, might a narrower range of securities meet the exception as a result of the proposal, if adopted? If fewer securities are excepted from the prohibitions of Regulation M, in what ways and to what extent, if any, would this impact the market for those securities that would no longer qualify for an exception?
26. Will fewer asset-backed securities issuances meet the requirement for this exception? If so, what impact would this proposed exception have on the market for new issuances of these securities?
27. Please discuss whether and to what extent investors take into account reliance on the current Rule 101(c)(2) exception for investment grade asset-backed securities when making a decision to invest in such securities.
28. Are there factors other than those identified in the proposed exception that influence the trading of such securities? Are there additional requirements that the Commission should adopt with respect to the proposed exception? Are there any that the Commission should remove from the proposal?
29. Would a probability of default standard be appropriate for the exception for asset-backed securities? Are there models used to calculate a probability of default threshold (
30. Are there any concerns with regard to distribution participants and affiliated purchasers' ability to collect any of the information required for the probability of default calculation for asset-backed securities? If so, please explain.
Rule 102 contains fewer exceptions than Rule 101 does because issuers and selling security holders have the greatest interest in an offering's outcome (and thereby should be subject to Regulation M's prohibitions) but generally do not have the same market access needs as underwriters do (and as such are expected to have less of a desire to seek an exception).
The Commission is proposing to amend Rule 102 to remove the Investment Grade Exception. As noted above, there are limited situations in which issuers, selling security holders, or their affiliated purchasers rely on the Investment Grade Exception provided in Rule 102.
Under the proposed amendment to Rule 102, an issuer of investment grade Nonconvertible Securities and asset-backed securities that is participating in a distribution of its own securities would not have an exception and would need to ensure that the applicable restricted period is complete before purchasing, bidding for, or attempting to induce others to purchase or bid for, the covered security. Market participants can structure their offerings to ensure compliance with Rule 102 by, for example, completing the distribution prior to purchasing any covered security and thus completing the applicable Rule 102 restricted period, or distributing bonds with different terms from outstanding bonds. The Commission preliminarily believes that eliminating the exception is appropriate because it would decrease the risk of conduct raising improperly the price of an offered security without impeding the facilitation of orderly distributions of securities.
We solicit comments on all aspects of this proposal. We ask that commenters provide specific reasons and information to support alternative recommendations. Please provide empirical data, when possible, and cite to economic studies, if any, to support alternative approaches.
31. Do issuers, selling security holders, and their affiliated purchasers have an incentive to manipulate securities that currently qualify for the Investment Grade Exception from Rule 102? If yes, would substituting the probability of default approach for the current exception address this incentive to manipulate?
32. If commenters are aware of situations where issuers, selling security holders, or their affiliated purchasers are currently relying on the Investment Grade Exception in Rule 102, do these activities raise improperly the price of the offered securities? Why or why not?
33. If the Investment Grade Exception in Rule 102 proposed to be removed is adopted, would it result in potential disruptions to trading and if so, please explain. Can market participants structure their distributions to comply with Regulation M? In light of the proposed removal of the exception, would any alternative structures be detrimental to the capital raising process?
34. Would the proposed removal of the Investment Grade Exception in Rule 102 impede the facilitation of orderly distributions of securities or result in potential disruptions to trading markets? Why or why not?
35. Should the Commission adopt an exception based on either the probability of default standard for Nonconvertible Securities or asset-backed securities that are offered pursuant to an effective shelf registration statement filed on Form SF–3 for Rule 102 instead of removing the Investment Grade Exception without substituting an alternative? Why or why not? Should the Commission adopt an exception for Rule 102 if a distribution participant determines that a security is an excepted security pursuant to Rule 101(c)(2)?
36. As discussed above, one commenter to the 2008 Proposal believed that the removal of the Investment Grade Exception for foreign sovereign bonds would impede a foreign sovereign or its affiliated purchasers from engaging in its own general trading and investment activities, or other public purposes. Should the Commission adopt an exception from Rule 102 for bonds issued by a foreign government or political subdivision thereof? For example, should the Commission except from Rule 102 any bond issued by a foreign sovereign or political subdivision thereof filed with a registration statement pursuant to Schedule B of the Securities Act? Do all bonds issued by foreign sovereigns or political subdivisions thereof trade based on a spread to U.S. Treasury securities? Please explain.
The Commission is proposing a new recordkeeping requirement that broker-dealers who are distribution participants or affiliated purchasers must keep certain records pursuant to Rule 17a–4 under the Exchange Act, the Commission's broker-dealer record retention rule. Proposed paragraph (b)(17) of Rule 17a–4 would require broker-dealers relying on the exception for Nonconvertible Securities to preserve the written probability of default determination made pursuant to proposed paragraph (c)(2)(i) of Rule 101. Accordingly, broker-dealers relying on
Under proposed paragraph (c)(2)(i) of Rule 101, broker-dealers relying on the exception would need to determine and document in writing that the probability of default of the issuer of Nonconvertible Securities is, estimated as of the day of the determination of the offering pricing and over the horizon of 12 calendar months from such day, less than 0.055% using a Structural Credit Risk Model. Broker-dealers relying on the exception in proposed Rule 101(c)(2)(i) would be required to preserve the written probability of default determination pursuant to Rule 17a–4. The proposed amendment to Rule 17a–4 would modify the existing practices of broker-dealers who are distribution participants or affiliated purchasers to impose new recordkeeping burdens when relying on the exception in proposed Rule 101(c)(2)(i). A broker-dealer that uses a vendor to determine the probability of default threshold could satisfy this recordkeeping requirement by maintaining documentation of the assumptions used in the vendor model, as well as the output provided by the vendor supporting the probability of default determination. A broker-dealer calculating the probability of default on its own could satisfy the recordkeeping requirement by maintaining documentation of the value of each variable used to calculate the probability of default, along with a record identifying the specific source(s) of such information for each variable.
The proposed requirement to preserve the written probability of default determination pursuant to Rule 17a–4 is consistent with other retention obligations of records that Exchange Act rules impose on broker-dealers.
The proposed recordkeeping requirement is intended to aid the Commission in its oversight of broker-dealers who are distribution participants or affiliated purchasers and rely on the exception in proposed paragraph (c)(2)(i) of Rule 101 by requiring such broker-dealers to retain the written probability of default determination supporting their reliance on the exception. The written records documenting the probability of default determination would be subject to review in regulatory examinations by Commission staff and self-regulatory organizations.
We solicit comments on all aspects of this proposal. We ask that commenters provide specific reasons and information to support their views.
37. Is the retention of information by distribution participants or affiliated purchasers for a period of three years, the first two years in an easily accessible place, in proposed paragraph (b)(17) of Rule 17a–4 appropriate? If not, what would be a more appropriate period of time, and why? Would investors, the Commission, or the public benefit from a retention period that is longer than three years? What would the costs be for broker-dealers who are distribution participants or affiliated purchasers for a retention period that is longer than three years?
38. Is the retention requirement in proposed paragraph (b)(17) of Rule 17a–4 burdensome or costly? Please explain. If so, in what ways could modifications to the Rule as proposed reduce these burdens and costs? What would the costs be for broker-dealers who are distribution participants or affiliated purchasers to preserve the written probability of default determination?
39. Should broker-dealers who are distribution participants or affiliated purchasers relying on the exception in proposed paragraph (c)(2)(i) of Rule 101 be required to document information in addition to the proposed required documentation (
The Commission solicits comment on all aspects of the proposed amendments to Rule 101, Rule 102, and Rule 17a–4, as well as any other matter that may impact any of the proposals discussed above. Please provide empirical data, when possible, and cite to economic studies, if any, to support alternative approaches. In particular, the Commission asks commenters to consider the following questions:
40. In proposing the criteria above, the Commission has focused on indicators of credit-worthiness. Is credit-worthiness alone an appropriate signifier of whether a security is susceptible to manipulation under the conditions in which Rule 101 is concerned? Why or why not?
41. Please comment in particular on any relevant changes to the Nonconvertible Securities or asset-backed securities markets since Regulation M was adopted in 1996 and how these developments should affect the Commission's evaluation of the proposed amendments. How do these changes fit within the relevant changes to the debt markets (more generally) since Regulation M's adoption?
Certain provisions of proposed amendments impose “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
The titles and control numbers for these collections of information are as follows:
As discussed above, Regulation M is designed to preserve the integrity of the securities trading market as an independent pricing mechanism by prohibiting activities that could artificially influence the market for an offered security. Subject to exceptions, Rule 101 prohibits distribution participants and their affiliated purchasers from directly or indirectly bidding for, purchasing, or attempting to induce another person to bid for or purchase a covered security during a restricted period. Rule 17a–4 requires a broker-dealer to preserve certain records if it makes or receives them.
In reference to the requirement in Section 939A, the Commission is proposing amendments to Rules 101 and 102 to remove the existing exceptions for nonconvertible debt securities, nonconvertible preferred securities, and asset-backed securities that are rated by at least one NRSRO in one of its generic rating categories that signifies investment grade. With respect to Nonconvertible Securities in Rule 101, the Commission proposes to substitute a standard that would except securities for which the probability of default, estimated as of the day of the determination of the offering pricing and over the horizon of 12 calendar months from such day, is less than 0.055%, as determined by a Structural Credit Risk Model. Broker-dealers who are distribution participants and their affiliated purchasers that would be relying on the proposed exception from Rule 101 would be required to preserve for a period of not less than three years, the first two years in an easily accessible place, the written probability of default determination. The Commission is also proposing to except asset-backed securities that are offered pursuant to an effective shelf registration statement filed on Form SF–3.
The discussion of estimates that follows is limited to a discussion of the new information collection requirements that result from the proposed amendments. The Commission is not estimating that the proposed amendments would increase or decrease the existing approved information collections under Rule 101 and Rule 17a–4 because those information collections are not related to making a determination about whether a security qualifies for the Investment Grade Exceptions. The information collections in the proposed amendments are distinct, so they are the only information collections discussed herein.
The information collected under the proposal would be used to ensure that the nonconvertible debt securities most resistant to manipulation are excepted from Rule 101. Further, the Commission preliminarily believes that the information contained in the records required to be retained and kept pursuant to the proposed amendment to Rule 17a–4 would be used to assist the Commission in conducting effective examinations and oversight of distribution participants and their affiliated purchasers.
The proposed amendments that impose information collection burdens would apply to distribution participants and affiliated purchasers that choose to rely on the exception for a distribution of Nonconvertible Securities. As noted in Part VIII.A.1, there were 237 underwriters of Nonconvertible Securities in 2020. The Commission preliminarily believes that this number will remain roughly consistent because of the capital, expertise, and relationships needed to underwrite a Nonconvertible Security. The Commission, therefore, is estimating that 237 respondents would be subject to PRA burdens under the proposed amendments.
As discussed below, the Commission preliminarily believes that respondents would incur PRA burdens under the proposed amendments because distribution participants and their affiliated purchasers would be required to analyze each distribution of Nonconvertible Securities to determine whether the distribution qualifies for the exception. Respondents would also incur PRA burdens under Rule 17a–4 because distribution participants would be required to keep certain records documenting this determination that support their reliance on the exception.
Under the proposed amendment to Rule 101, respondents wishing to rely on the exception for a distribution of Nonconvertible Securities would be required to gather the data serving as the inputs and then perform the analysis necessary to calculate the probability of default of the issuer whose securities are the subject of the distribution.
An issuer's probability of default is forward-looking and changes over time, so the Commission preliminarily believes that respondents would manually gather the inputs required to calculate probability of default each time it participates in a distribution of debt securities. There were 19,076 offerings of Nonconvertible Securities in 2020.
The Commission preliminarily believes that the proposed amendments would not result in respondents incurring PRA burden when participating in distributions of asset-backed securities because whether an asset-backed security has an effective registration statement on Form SF–3 is an objective, observable fact.
The proposed amendment to Rule 17a–4 would require broker-dealers relying on the exception in proposed paragraph (c)(2)(i) to preserve for a period of not less than three years, the first two years in an easily accessible place, the written probability of default determination. Because the burden to make these records is accounted for in the PRA estimates for the amendment to Rule 101, the burden imposed by these proposed new requirements under Rule 17a–4 is limited to the maintenance and preservation of the written records.
Each collection of information discussed above would be a mandatory collection of information.
The Commission would not typically receive confidential information as a result of this collection of information. To the extent that the Commission receives—through its examination and oversight program, through an investigation, or by some other means—records or disclosures from a distribution participant regarding the probability of default determination, such information would be kept confidential, subject to the provisions of applicable law.
Pursuant to proposed Rule 17a–4(b)(17) a broker-dealer who is a distribution participant or affiliated purchaser would be required to retain information for a period of not less than three years, the first two years in an easily accessible place.
Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits comments to (1) evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information would have practical utility; (2) evaluate the accuracy of the Commission's estimate of the burden of the proposed collections of information and assumptions used therein; (3) determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected; (4) determine whether there are ways to minimize the burden of the collections of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology; and (5) evaluate whether the proposed amendments would have any effects on any other collection of information not
While the Commission welcomes any public input on this topic, the Commission asks commenters to consider the following questions:
42. Is the Commission adequately capturing the respondents that would be subject to burdens under the proposed amendments? Specifically, would more or fewer than the 237 respondents determine the probability of default?
43. Is the Commission accurately estimating the amount of time it would take to program systems and gather the data required to perform the probability of default calculations?
44. Would any aspects of the proposed amendments that are not discussed in this PRA Analysis affect the burden associated with the collection of information?
45. Do commenters agree with the Commission's preliminary belief that the proposed amendment to Rule 102 would not change PRA burdens?
46. Do commenters agree with the Commission's preliminary belief that the proposed amendments would not result in respondents incurring PRA burden when participating in distributions of asset-backed securities?
Any member of the public may direct to us any comments concerning the accuracy of these burden estimates and any suggestions for reducing the burdens. Persons submitting comments on the collection of information requirements should direct the comments to the Office of Management and Budget, Attention: Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs,
The Commission is sensitive to the economic consequences and effects, including costs and benefits, of its rules. Some of these costs and benefits stem from statutory mandates, while others are affected by the discretion exercised in implementing the mandates. Section 3(f) of the Exchange Act provides that whenever the Commission is engaged in rulemaking pursuant to the Exchange Act and is required to consider or determine whether an action is necessary or appropriate in the public interest, the Commission shall also consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation.
The analysis below addresses the likely economic effects of the proposed amendments, including the anticipated benefits and costs of the amendments, and their likely effects on efficiency, competition, and capital formation. The Commission also discusses the potential economic effects of certain alternatives to the approach taken by these amendments. Some of the benefits and costs discussed below are difficult to quantify. For example, sticky offerings are generally not identified in the available data and may be difficult to trace in the appropriate records of the distribution participants. Therefore, much of the discussion of economic effects is qualitative.
To assess the economic effects of the proposed amendments, the Commission is using as the baseline the nonconvertible debt, nonconvertible preferred, and asset-backed securities markets as they exist at the time of this release, including applicable rules that the Commission has already adopted.
The affected parties include Nonconvertible Security and asset-backed security (collectively “fixed-income securities”)
The affected securities are nonconvertible debt, nonconvertible preferred, and asset-backed securities. In 2020, there were 19,076 issues of nonconvertible debt, with 694 issuers and 237 participating underwriters involved.
Regulation M is designed to prevent manipulative activities that could artificially influence the demand and pricing of covered securities.
The Commission believes that the application of the Investment Grade Exception to Rules 101 and 102 is primarily limited to two cases:
Reopenings are used in situations when such financing method offers the benefit of cost-effectiveness. For example, it may be cheaper for an issuer to offer a series of small offerings as opposed to one large offering, as the latter could result in a lower offering price due to the supply pressure. Further, since a reopening issue is fungible with securities already in circulation and can be traded interchangeably with these securities in the secondary market, it provides additional liquidity benefits to the investors.
Sticky offerings typically result when a large investor fails to fulfill its expressed purchase interest in the issue,
The Commission preliminarily believes that the exception based on investment grade rating is rarely used in practice in Rule 102. Rule 102 prohibits trading of the securities fungible with the securities being issued by issuers, selling security holders, and their affiliated purchasers.
The Investment Grade Exception was included in the regulation as it was considered a good proxy for the likelihood of manipulation risk.
As mentioned above, Section 939A of the Dodd-Frank Act requires the Commission to “remove any reference to or requirement of reliance on credit ratings, and to substitute in such regulations such standard of credit-worthiness as the Commission determines to be appropriate.”
Structural Credit Risk Models typically take the issuer balance sheet measures of debt obligations as given and estimate a probability of default based on the market value and volatility of the firm's equity. The value of equity is viewed in these models as the value of a call option on firm assets where the strike price is the total notional value of debt. Since the market value of equity, the volatility of equity, and the notional value of debt can be calculated from the market and balance sheet data, under the Structural Credit Risk Models the volatility of the value of the assets and the market value of assets, which are not observable, can be estimated. The probability of default can be calculated as the probability that the call option will expire out-of-the-money, which occurs when the value of the company falls below the book value of the debt.
As discussed above, Structural Credit Risk Models are based on the structure of the balance sheet.
The Commission preliminarily believes that the probability of default based on the Structural Credit Risk Models is an appropriate proxy for credit-worthiness. As discussed previously, the Commission continues to believe that credit-worthiness is an appropriate standard to reflect manipulation risk since securities issued by firms with sound credit-worthiness trade primarily on yield and maturity and have low pricing uncertainty. Thus, the probability of default based on Structural Credit Risk Models is a reasonable proxy for manipulation risk.
The Commission calibrated the 0.055% threshold in the sample of nonconvertible fixed income securities so as to capture approximately 90% of the investment grade securities in our sample of nonconvertible fixed income securities (2436 distinct investment grade issues with probability of default below 0.055% out of 2710 total investment grade rated issues in the sample). This threshold also captures 125 distinct non-investment grade issues with probability of default below 0.055%. Overall, 2561 issues meet the proposed exception as compared with the 2710 issues under the current exception.
An advantage of using probabilities of default implied by Structural Credit Risk Models instead of NRSRO credit ratings is that these model-implied probabilities of default generally use current estimates of equity valuation and volatility, and hence incorporate most recent news affecting the valuation and perceived volatility of the firm. In contrast, credit rating agencies are generally slower than the market in updating credit ratings and outlooks and thus may reflect less up-to-date information.
Distribution participants should be able to calculate the probability of default internally using Structural Credit Risk Models. One of the benefits of the proposed amendment is that the distribution participants will have the flexibility of selecting the model they find most convenient to assess the credit-worthiness of issuers for the purposes of using the exception. This means the distribution participants will no longer have to rely on an NRSRO rating for the issue for purposes of the Regulation M exception and will no longer have to rely on an NRSRO's choice of the model for such purposes. Furthermore, the Commission preliminarily believes that multiple vendors currently provide estimates of the probability of default based upon Structural Credit Risk Models as a part of default packages that include various market data and metrics.
Removing the reference to credit ratings from Rules 101 and 102 of Regulation M may also have a benefit of expanded options available to distribution participants compared to the Regulation M Investment Grade Exception requirement, as the proposed requirement will no longer rely on a limited number of vendors providing credit ratings, which may reduce possible negative consequences from limited competition. Structural Credit Risk Models as a measure for credit-worthiness could therefore serve as a better proxy for manipulation risk than credit ratings because, by prescribing a methodology rather than a metric generated by only a certain category of regulated vendors (that is, NRSROs), distribution participants may have more options for either using a vendor supplied Structural Credit Risk Model or using their own proprietary version of a publicly available Structural Credit Risk Model.
Under the proposed amendments, the Structural Credit Risk Models cannot, as a practical matter, apply to asset-backed securities due to the complexity of the structure of such instruments. In the case of asset-backed securities, the Commission preliminarily believes that securities that are offered pursuant to an effective shelf registration statement filed on Form SF–3 should also be excepted from Rule 101. Form SF–3 requirements provide objective criteria that also ensure that the securities with the least amount of manipulation risk are allowed to rely on the Regulation M exception. Specifically, Form SF–3 requirements limit the number of nonperforming assets in the asset-backed security pool, require review of the pool assets, and require certification by the chief executive officer, among other things. The Commission continues to believe, as noted when it adopted these requirements, that use of Form SF–3 incentivizes sponsors to carefully review and disclose the underlying assets' characteristics, reducing the overall uncertainty about the asset-backed security and therefore the risk of manipulation. Accordingly, asset-backed securities that are offered pursuant to an effective shelf registration statement filed on Form SF–3 have similar qualities and characteristics to the investment-grade asset-backed securities currently excepted from Rule 101(c)(2). Further, an analysis of a merged sample of Form SF–3 filers and Bloomberg credit ratings
The Commission is proposing to eliminate the exception entirely from Rule 102, as discussed above, given the heightened risk of manipulation that exists for issuers and selling security holders and absence of a need to facilitate an orderly distribution or to limit potential disruptions in the trading market, coupled with our understanding that the Investment Grade Exception is generally not relied upon in practice, as issuers and selling security holders who are subject to Rule 102, unlike broker-dealers, typically do not trade outstanding issues of their own securities that are identical to the issue being distributed in the secondary market.
The Commission recognizes that some of the affected distribution participants may bear costs from the proposed amendments. The proposed amendments may alter the universe of securities that can rely on the exception and additionally may prevent issuers from using the exception in some cases potentially leading to fewer issues of the affected securities. If some distribution participants decide not to participate in certain issues as a result of the proposed amendments, the costs of the affected issues may increase. For example, when fewer banks or broker-dealers are available, these distribution participants may be able to charge higher fees. Additionally, as the result of the proposed amendments fewer issues may take place, potentially limiting issuers' ability to raise capital and affecting investors in the relevant securities as the available security selection and liquidity may be reduced.
There are several types of costs that could arise: (1) Costs associated with calculations or obtaining the probability of default estimate; (2) costs associated with maintaining records related to the probability of default estimation; (3) costs due to the probability of default being an imperfect proxy for credit-worthiness, (4) asset-backed securities' costs associated with the proposed amendments, (5) costs related to Rule 102 amendments (6) indirect and other costs of the amendments. We discuss these costs in detail below.
Distribution participants may incur costs related to determining the probability of default. Consistent with the PRA section,
Any costs associated with using a vendor to obtain probability of default estimate should be minimal, as the Commission preliminarily believes that distribution participants engaged in the offering of Nonconvertible Securities would typically already have subscriptions to vendors that provide calculations regarding the probability of default based on Structural Credit Risk Models.
Distribution participants would also incur costs related to capturing and maintaining records regarding the probability of default determination. Consistent with the PRA section,
As discussed previously, the proposed Structural Credit Risk Models are designed to measure credit-worthiness, and credit-worthiness itself
The use of any model to estimate credit-worthiness necessarily provides an imperfect measure. Structural credit risk models are no exception. We note, however, that NRSROs similarly may rely on imperfect models of estimating issuer credit-worthiness. Moreover, models such as Structural Credit Risk Models often are a part of the analysis involved in obtaining a credit rating.
Some ways to implement Structural Credit Risk Models make use of historical trading data to produce a reliable estimate of the model input parameters. These data may not be available for certain infrequently traded securities. In some circumstances the market for a security has not yet been established and sufficient trading data are unavailable, making it difficult to apply the exception.
Additionally, Structural Credit Risk Models rely on a number of parameter estimates such as firm market value and volatility, which could be difficult to assess as these values change with market conditions and business fluctuations. A changing term structure of interest rates and noise trading in the market can further distort the probability of default estimates. Incorrect parameter estimates may result in the incorrect estimates of default probability and allow distribution participants to rely on the exception for risky issues or prevent distribution participants from relying on the exception for safe issues. Implied probabilities of default are sensitive to market prices and estimates of market volatility and consequently tend to be counter cyclical, increasing during market downturns, which are often also periods of increased uncertainty. A constant threshold which is not time-varying would potentially result in fewer firms qualifying for the exception during market downturns, which may result in more issuances during this period not qualifying or firms choosing not to issue, hence increasing their cost of capital or limiting their access to capital. While credit rating downgrades are also counter cyclical, they tend to be slow in incorporating updates
Due to the number of variations among Structural Credit Risk Models and their estimated inputs, the probability of default estimates may be subjective to some extent and not comparable across different issuers or for the same issuer across different issues if estimates are based on different models, or done by different researchers or vendors. The latter may affect market participants' ability to effectively rely on the estimates to make comparative assessments across multiple securities. However, this is also true of the credit ratings that often rely on similar models, which mitigates these costs of the proposed amendments relative to the market baseline.
In addition, as discussed previously in reference to the selected threshold, the amendment may expand slightly the universe of firms that qualify for the exception and include firms that did not receive an investment grade credit rating, but have a structural credit model implied probability of default that falls below the threshold. The debt prices of these firms may be prone to manipulation if the price of their debt is relatively less sensitive to aggregate interest rate changes.
Additionally, this amendment may create potential opportunities for new products offered by the vendors designed specifically for a given issue or issuer. A custom designed estimate paid for by the issuer may lead to potential conflicts of interest since the vendor is incentivized in this case to produce an estimate which would allow the issuer to rely on the exception. However, the existing major vendors supplying probability of default estimates have numerous clients currently using this information for business purposes other than the Rule 101 exception. Therefore, given the reputational concerns it is unlikely that these vendors would produce a slightly different product to cater specifically to the use of these estimates for purposes of relying on the Rule 101 exception. Additionally, the model input estimates or assumptions may be tweaked by the distribution participants in such a way as to produce the desired estimation result if the model is estimated internally and may result in market participants' adjusting the models so as to be able to rely on the exception.
Finally, the proposed threshold of 0.055% for the exception is based on model assumptions and historical data. Future market evolution may result in this threshold becoming either too large or too small, allowing risky issues to rely on the exception or preventing safe issues from using it. This may vary by industry, with the threshold being more restrictive in some industries relative to the original NRSRO investment grade designation. Moreover, probabilities of default as implied by Structural Credit Risk Models tend to be counter-cyclical and can spike in periods of crisis due to decreases in market valuation and increases in equity volatility. Consequently, fewer investment grade firms would fall below the threshold. Credit rating by NRSROs are also countercyclical but tend to be slow moving, since credit rating changes often lag updates to firm conditions that would impact cost of capital.
The proposed amendments may render some asset-backed securities ineligible to rely on the exception from the Regulation M. This may increase issuance costs for the distribution participants. For instance, broker-dealers may reduce an offering's size or increase fees if required to comply with Regulation M. Additionally, distribution participants may need to establish new business relationships due to Regulation M restrictions. Furthermore, some issuers may decide not to issue the affected securities if required to comply with Regulation M restrictions. As a result, some asset-backed securities' issues may not take place, which could affect issuers' ability to raise capital and could affect investors in the relevant markets by potentially reducing the selection of the available asset-backed securities.
As discussed previously, the effect of eliminating the exception from Rule 102 is expected to be minimal since the exception is likely not useful from a practical standpoint, because the issuers and selling security holders who are subject to Rule 102 typically do not trade their own securities that are being issued. However, as was identified previously in a comment letter, an Investment Grade Exception from Rule 102 could affect the ability of foreign sovereign issuers or their affiliates to purchase any of such issuer's securities.
Besides the direct effects on the distribution participants and affected securities discussed above the proposed amendment may also generate indirect effects on investors in these securities and NRSROs. For instance, if issuer participation in the relevant security issues becomes limited, some issues may not take place that otherwise would. Investors may face a more limited choice of investment instruments as a result, for example in the case of reopenings. This may further affect liquidity of their portfolios since reopenings can offer additional liquidity benefits as the securities offered in reopenings are interchangeable with the existing issues. However, as already discussed, these costs are expected to be minimal as reopenings are used infrequently.
The proposed amendment does not rely on an NRSRO rating in order to determine if an issue can rely on the exception. This may diminish NRSROs' clientele to the extent NRSROs choose not to provide Structural Credit Risk Model-based estimates of the probability of default for their existing clients opting to rely on the exception. However, the amendment may increase the clientele of the vendors that supply relevant data and metrics to the distribution participants if such vendors already supply probability of default estimates or choose to offer this estimate as a part of their services. In addition, if firms do not solicit credit rating services from NRSROs beyond the estimate of a probability of default implied by a Structural Credit Risk Model, investors will not be able to benefit from the information provided by a credit rating report and ongoing coverage of the firm that otherwise would be provided through the distribution participant.
As discussed previously, distribution participants will have flexibility to select the best Structural Credit Risk Model to access credit-worthiness as a measure of manipulation risk for their business. This may encourage market participation in affected security issues and, as a result, could improve competition between issuers for the investors as well as between other distribution participants. Further, widely available estimates of the probability of default as well as an option of internal model estimation could lead to a more competitive environment as the requirement to rely on proprietary credit risk models of a small number of NRSROs is removed. The improved competition, market participation and efficiency ultimately should lead to more efficient capital formation as the access to and functioning of the relevant fixed income markets improves. We note however that these effects are not expected to be significant because the exceptions in Rules 101 and 102 affect only a small portion of the relevant market as discussed previously.
However, while unlikely, it is possible that a new business model could emerge in the relevant markets that leads to conflicts of interest and neutralizes the effects discussed above. For instance, distribution participants could contract with a vendor or a credit rating agency directly to create a custom estimate of the probability of default. This could result in a business model where an issuer pays for the supplied estimate and where vendors may be incentivized to produce an estimate designed to fit the desired estimation result. Thus issues that otherwise would not be able to rely on the exception could end up being excepted potentially increasing the manipulation risk in the relevant markets, which in turn could negatively affect competition and capital formation.
Further, the positive effects discussed above could be offset by the fact that some issuers may face higher costs or no longer be able to use the exception, for example, due to imperfect model estimates as a result of market fluctuations or changing market. High costs of issuance or inability to rely on the exception may deter participants from issuing the affected securities, which could impact the competition and capital formation in the relevant markets. Further, potential negative effects of non-uniform estimates and subjectivity additionally reduce these benefits. Finally, potentially increased issuance costs due to some asset-backed securities being ineligible for the exception may also negatively affect market participation and competition of the relevant markets.
Alternative 1 discussed below deals with the proposed threshold, 2–4 propose alternative approaches to using Structural Credit Risk Models as a standard of credit-worthiness to measure manipulation risk. Alternative 5 discusses elimination of the exception, alternative 6 deals with asset-backed securities, while alternative 7 discusses Rule 102 options.
The proposed threshold of 0.055% was chosen so as to capture most of the investment grade securities while at the same time capturing the fewest of the non-investment grade securities. However, a different threshold could be used in the proposed exception, which would capture different proportions of investment and non-investment grade securities. For example, a higher
As an alternative to providing a specific number as a threshold, the Commission could specify a method for distribution participants to use in calculating such a threshold. For example, such method could involve calculating probability of default for a sample of nonconvertible securities similar to the distribution participant's securities issued over a specified time interval and comparing it to investment grade status or another specified standard of credit-worthiness. A longer time interval would capture more issues and improve statistical accuracy at expense of having market conditions potentially changing and generating incorrect estimates. A shorter time interval ensures the market conditions have not changed but includes fewer issues resulting in a smaller sample and lower statistical accuracy.
The main advantage of specifying a method as opposed to a number for the threshold is its flexibility with respect to changing market conditions. The main disadvantage of this alternative is subjectivity of the analysis involved, which may lead to non-uniform application of the Regulation M exception across issues or issuers; or lead to market participants adjusting the estimation to be able to rely on the exception.
As an alternative replacement for the reference to investment grade securities, the Commission has considered analysis that could be based on security characteristics, such as (1) total amount of issue outstanding (public float); (2) yield to maturity of the security during a past trading period; or (3) empirical duration.
•
To the extent that it is more difficult to manipulate price of a larger issue, public float could be used as an alternative criterion to reflect manipulation risk. This criterion has the advantage of being straightforward and easy to evaluate. Due to its simplicity it lacks the estimation issues associated with other measures such as the probability of default. However, determination of a threshold for public float to select securities for the exception is complicated due to its considerable variation across issuers or industries. A specific threshold selection could potentially disadvantage smaller issuers—especially during periods of market downturns when valuations are low.
•
Securities that are traded primarily on yield and maturity have low manipulation risk, as discussed before, since their pricing does not reflect issuer specific risks. Yield to maturity, therefore, can be used as an alternative criterion to evaluate manipulation risk. However, using yield to maturity as a criterion for securities eligible for the exception is also problematic. Even though this criterion is similarly easy to obtain and lacks any major estimation issues, selecting a threshold is not straightforward. For instance, yield to maturity differs considerably by industry. Selecting a fixed threshold may result in some industries being under-represented and others over-represented in the pool of eligible issues. Moreover, yield to maturity often moves with risk-free rates; thus fewer firms would be excepted during periods of high interest rates.
•
Empirical duration is another alternative proxy that can be used to evaluate Nonconvertible Securities for an exception from Regulation M. Negative empirical duration might be an indication that a Nonconvertible Security or its issuer is of low credit-worthiness. A Nonconvertible Security with negative empirical duration is less impacted by changes in interest rates than Nonconvertible Securities of credit-worthy issuers and trades similar to equity securities. Although negative empirical duration may demonstrate that a particular issuer or security is not credit-worthy, it has some limitations that impact the viability of negative empirical duration as a substitute for the Investment Grade Exception. In particular, this measure relies heavily on statistical analysis, requires the Nonconvertible Security to be traded, and may lack intuitive interpretation, which renders empirical duration a poor proxy for the type of manipulation that Regulation M is designed to prevent.
The Commission has also considered an exception based on issuer characteristics, for example, the interest coverage ratio, the WKSI standard, as suggested in the 2008 Proposal,
•
The Commission could adopt the WKSI standard as a criterion to determine eligibility for the exception. The issuers that fall under the WKSI definition are large and established firms that typically have sound credit-worthiness. The advantage of this characteristic is its simplicity and straightforward calculations. However, the WKSI standard as discussed in the 2008 Proposal was heavily criticized, for instance for allowing risky high-yield issues to be eligible for the exception and preventing issues by smaller but
•
Another possible issuer-based criterion for exception eligibility is the interest coverage ratio. A high interest coverage ratio typically indicates the issuer's ability to repay debt and can be used as a criterion to reflect credit-worthiness. It has the advantage of being a simple and easy to calculate value. However, the interest coverage ratio is an accounting measure that can result in inconsistent outcomes as it is based on the reported earnings rather than cash flows. Reported earnings may differ based on accounting practices of the firm. The proposed Structural Credit Risk Models have an advantage over interest coverage ratio since they are not dependent on reported earnings, which are heavily influenced by accounting practices.
•
An alternative to using Structural Credit Risk Models is reduced-form credit risk models.
The Commission considered, as another alternative, an analysis based on both security and issuer characteristics; for example, characteristics outlined in Exchange Act Rule 15c3–1. Rule 15c3–1 specifies a set of factors to determine a minimum amount of credit risk broker-dealers can use to determine if a security can qualify for lower haircuts: (1) Credit spreads; (2) securities-related research; (3) internal or external credit assessments; (4) default statistics; (5) inclusion in an index; (6) enhancements and priorities; (7) price, yield and/or volume; or (8) asset-class specific factors.
The advantage of this alternative is that it would align the exception with already existing standards that broker-dealers might apply to determine whether a security has a minimal amount of credit risk. The standard in Rule 15c3–1 was adopted in 2013 as a replacement for a reference to investment grade securities pursuant to Section 939A of the Dodd-Frank Act. Such test could have minimum additional costs for broker-dealers who already have all the necessary procedures in place for its application.
However, the scope and objectives of the 15c3–1 standard and the exception in Rules 101 and 102 of Regulation M are different: The 15c3–1 standard applies only to broker-dealers, which already have the necessary arrangements in place to apply 15c3–1 standard, whereas the Regulation M exceptions affect a broader range of market participants. For example, banks involved in the relevant security issues will also be affected. Depending on these other participants' systems and regulatory obligations, it may be costly for them to replace the investment grade standard with the minimal credit risk standard. This could result in a situation where different distribution participants are facing different costs,
The Commission also considered eliminating the exception for fixed-income securities. The advantage of this alternative is a more uniform application of Regulation M, which eliminates the situations when manipulation-prone securities fall under the exception due to limitations of proxies used to select the securities to be excepted. For instance, as discussed above, there are various limitations of the Structural Credit Risk Models' applications, which may limit the ability of certain issuers to rely on the exception or allow issuers with a higher risk of having their securities manipulated to avoid Regulation M. If the exception is eliminated, any limitations of such a proxy for manipulation risk are eliminated as well.
In addition, this approach could ultimately relieve broker-dealers from the need to spend time or costs to implement, understand, and calibrate any proposed standard such as a Structural Credit Risk Model. The Commission preliminarily believes that most broker-dealers already have the capability to undertake those calculations themselves or procure them from a data vendor and would benefit from the continued availability of an exception despite the costs.
However, this approach raises a number of concerns. Specifically, eliminating the exception could make some offerings in the excepted securities considerably more costly. For example, with respect to reopenings, broker-dealers who might otherwise elect to reopen a bond offering may determine not to do so to avoid restrictions of Regulation M that could arise during such a reopening if it becomes a sticky offering. This could increase the cost of the issue that has to rely on the next-best alternative structure. Further, an alternative transaction structure, if selected, may decrease the liquidity of the securities being issued because they would not be fungible with the previously issued securities. This may also result in some distribution participants, such as broker-dealers, deciding not to participate. This could limit the number of available participants, potentially increasing fees faced by the issuers. Further, if certain
However, these costs might be mitigated because a party subject to the prohibitions of Rules 101 or 102 could structure its buying activity before or after the applicable restricted period so as not to incur any costs associated with relying on the exceptions.
The above arguments apply to all currently excepted investment grade securities because any such issue can become a sticky offering and the distribution participants have to account and adjust for this possibility ex-ante. In a scenario where an underwriter is unable to sell its allotted securities to the public on or promptly after the pricing date, there is no exception on which to rely, the underwriter/broker-dealer would likely ex-ante adjust the cost of issuance to reflect this added risk. Broker-dealers could be more cautious in structuring potentially sticky offerings if they know they will be required to comply with Regulation M (and have no exceptions available), by reducing an offering's size or increasing fees as a risk premium. This could potentially raise the cost of investment grade offerings. However, this could also decrease the probability of an offering to become sticky, potentially reducing manipulation risk in the relevant markets.
The removal of the exception could also affect the liquidity of the fixed-income issues if reopenings of issues already in circulation are more costly, potentially reducing issuers' reliance on this financing structure, which negatively impacts the investors in the relevant markets.
This alternative could also disrupt some established business relationships. In certain circumstances new relationships may need to be established. For example, if an offering becomes sticky, the issuer may need to seek a different broker-dealer to comply with the Regulation M requirements. This would increase costs of the affected security offerings, including the new broker dealer fees or the search costs, especially when the market has a limited number of available broker-dealers.
As an alternative for asset-backed securities the Commission could use a standard based on the value at risk. Value at risk measures the percentage loss of the security in the worst case scenarios over a specified time period. It can be estimated by performing a simulation over the underlying securities' pool and determining the cash flows available to the asset-backed security in each scenario. A number of commercially available options can be used to perform this analysis. Value at risk can be a good indicator of manipulation risk since low value at risk indicates that the majority of the cash flows are sufficiently assured. The price of the asset-backed security in this case is more certain and is less subject to manipulation risk.
However, value at risk is by construction estimated for a specified time period and thus only accounts for the potential losses during such period, while losses may also occur after this time period. In this case the price of the asset-backed security may depend on issue-specific factors and be prone to manipulation despite the estimated value at risk over the specified time period being low. This may allow securities with high manipulation risk to rely on the exception.
The Commission considered exempting all bonds issued by a foreign government or political subdivision thereof from Rule 102 of Regulation M. This would allow such issuers to avoid compliance costs associated with Regulation M requirements as discussed above. However, this alternative implies excepting non-investment grade foreign sovereign securities along with investment grade foreign sovereign securities. This may introduce considerable risk that some foreign sovereign issuers with low credit-worthiness and which are subject to a considerable geopolitical risk are allowed to rely on Regulation M exception. This could potentially result in a high pricing uncertainty and a high manipulation risk introduced into the relevant markets.
The Commission also considered excepting asset-backed securities from Rule 102 that are offered pursuant to an effective shelf registration statement filed on Form SF–3. However, this alternative might introduce risk regarding issuers, selling shareholders, or their affiliated purchasers engaging in activity to favorably affect the distribution based on their interest in an offering's outcome, without any benefit to facilitating orderly distributions or to limiting potential disruptions in the trading market.
We solicit comments on all aspects of this proposal. We ask that commenters provide specific reasons and information to support alternative recommendations. Please provide empirical data, when possible, and cite to economic studies, if any, to support alternative approaches.
47. Are commenters aware of any additional examples of situations when Structural Credit Risk Models cannot be applied or are difficult to apply? Please explain why these situations occur.
48. Are there any assumptions or inputs of Structural Credit Risk Models that may be relevant to the estimation of the probability of default and may require additional clarification?
49. Do commenters agree with the Commission's assessment of the availability and associated costs of the estimates for probability of default based on Structural Credit Risk Models? Similarly, do commenters agree with the Commission's assessment of availability and associated costs of the necessary software or other resources necessary to obtain the estimates internally? Are there any factors that the Commission failed to consider?
50. Do commenters agree with the Commission's assessment of the proposed method of threshold measurements? Would a different method of threshold have greater benefits or fewer costs than the proposed method of threshold measurements? It is difficult to select a threshold that would capture all of the investment grade securities and none of the non-investment grade securities due to the imperfect correlation of credit ratings and probability of default. Should the current method used to calculating the threshold aim at capturing a larger set of investments grade securities, such as a set above 90%, or aimed at capturing a smaller set of non-investment grade securities, such as fewer than 125 issues? Should a different date other than October 22, 2021, for the analysis be selected? Should the Commission propose a method for calculating the threshold instead of proposing a number? Should the Commission provide guidance on the sample of securities, time interval, standard of credit-worthiness as a basis for comparison, or other specifications that should be used in this method?
51. Are commenters aware of any available data that may help identify how many issuances of asset-backed securities with investment grade rating might be excluded under the proposed standard?
52. Are commenters aware of cases when incorrect estimates of Structural Credit Risk Models' parameters result in inaccurate probability of default estimates? For example, cases when the estimated probability of default is high for an issuer with sound credit-worthiness and vice versa. Please provide the supporting data and calculations if available.
53. Are there cases where probability of default is not a reasonable proxy for credit-worthiness and therefore manipulation risk? If so, why is it a poor proxy in those cases?
54. What concerns, if any, do commenters have regarding the counter cyclicality of probabilities of default implied by Structural Credit Risk Models?
Section 3(a) of the Regulatory Flexibility Act of 1980
With respect to the amendments to Rules 101 and 102, it is unlikely that any broker-dealer who is defined as a “small business” or “small organization” as defined in Rule 0–10
We encourage written comments regarding this certification. The Commission solicits comment as to whether the proposed amendments to Rules 101 and 102, and Rule 17a–4 could have an effect on small entities that has not been considered. We request that commenters describe the nature of any impact on small entities and provide empirical data to support the extent of such impact.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996,
Pursuant to the Exchange Act, 15 U.S.C. 78a
Broker-dealers, Fraud, Issuers, Reporting and recordkeeping requirements, Securities.
For the reasons in the preamble, title 17, chapter II of the Code of Federal Regulations is proposed to be amended as follows:
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 240.17a–4 also issued under secs. 2, 17, 23(a), 48 Stat. 897, as amended; 15 U.S.C. 78a, 78d–1, 78d–2; sec. 14, Pub. L. 94–29, 89 Stat. 137 (15 U.S.C. 78a); sec. 18, Pub. L. 94–29, 89 Stat. 155 (15 U.S.C. 78w);
(b) * * *
(17) The written probability of default determination pursuant to § 242.101(c)(2)(i) of this chapter (Rule 101 of Regulation M).
15 U.S.C. 77g, 77q(a), 77s(a), 78b, 78c, 78g(c)(2), 78i(a), 78j, 78k–1(c), 78
(c) * * *
(2)
(ii) Asset-backed securities that are offered pursuant to an effective shelf registration statement filed on Form SF–3 (17 CFR 239.45).
By the Commission.
Coast Guard, Homeland Security (DHS).
Notice of proposed rulemaking.
The Coast Guard is proposing to establish a temporary safety zone for certain navigable waters of the Sabine River, extending the entire width of the river, adjacent to the public boat ramp located in Orange, TX. The special local regulation is necessary to protect persons and vessels from hazards associated with a high-speed boat race competition in Orange, TX. Entry of vessels or persons into this zone would be prohibited unless authorized by the Captain of the Port Marine Safety Unit Port Arthur or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before April 29, 2022.
You may submit comments identified by docket number USCG–2022–0190 using the Federal Decision Making Portal at
If you have questions about this proposed rulemaking, call or email Mr. Scott Whalen, Marine Safety Unit Port Arthur, U.S. Coast Guard; telephone 409–719–5086, email
On March 9, 2022, the City of Orange, TX, notified the Coast Guard that it would be sponsoring high speed boat races from 9 a.m. to 6 p.m. on May 21 and 22, 2022, adjacent to the public boat ramp in Orange, TX. The Captain of the Port Marine Safety Unit Port Arthur (COTP) has determined that potential hazards associated with high speed boat races would be a safety concern for spectator craft and vessels in the vicinity of these race events.
The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters of the Sabine River adjacent to the public boat ramp in Orange, TX, before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).
The COTP is proposing to establish a special local regulation from 8:30 a.m. on May 21, 2022, through 6 p.m. on May 22, 2022. The safety zone would be enforced from 8:30 a.m. to 6 p.m. on both May 21st and May 22nd. The safety zone would cover all navigable waters of the Sabine River, extending the entire width of the river, adjacent to the public boat ramp located in Orange, TX, bounded to the north by the Orange Public Wharf and latitude 30°05′50″ N and to the south at latitude 30°05′33″ N. The duration of the safety zone is intended to protect participants, spectators, and other persons and vessels, in the navigable waters of the Sabine River during high-speed boat races and will include breaks and opportunity for vessels to transit through the regulated area.
No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. They may be contacted on VHF–FM channel 13 or 16, or by phone at 409–719–5070.
The COTP or a designated representative may prohibit or control the movement of all vessels in the zone. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.
The COTP or a designated representative may terminate the operation of any vessel at any time it is deemed necessary for the protection of life or property. The COTP or a designated representative may terminate enforcement of the special local regulation at the conclusion of the event.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the proposed size, location and duration of the rule. The safety zone would encompass a less than half-mile stretch of the Sabine River for eight hours on each of two days. The Coast Guard would notify the public by issuing Local Notice to Mariners (LNM),
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601–612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the temporary safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Directive 023–01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone that would last 8.5 hours on each of two days and that would prohibit entry on less than a half-mile stretch of the Sabine River in Orange, TX. Normally such actions are categorically excluded from further review under paragraph L60 of Appendix A, Table 1 of DHS Instruction Manual 023–01–001–01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.2.
(a)
(b)
(c)
(d)
(2) The COTP or a designated representative may forbid and control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.
(3) The COTP or a designated representative may terminate the event or the operation of any vessel at any time it is deemed necessary for the protection of life or property.
(4) The COTP or a designated representative will terminate enforcement of the special local regulations in this section at the conclusion of the event.
(e)
Coast Guard, Homeland Security (DHS).
Notice of proposed rulemaking.
The Coast Guard is proposing to establish a temporary safety zone for all navigable waters within a 4,000-yard oval radius off the Stan Sayres Memorial Hydroplane Pits downward to the Adams Street Boat Ramp on Lake Washington. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards in the vicinity of the Stan Sayres Memorial Park and Boat Launch and Adams Street Boat Ramp associated with test trials of a hydroplane race boat. This proposed rulemaking would prohibit persons and vessels from being in the safety zone unless specifically authorized by the Captain of the Port Sector Puget Sound or a designated representative.
Comments and related material must be received by the Coast Guard on or before April 14, 2022.
You may submit comments identified by docket number USCG–2022–0200 using the Federal Decision Making Portal at
If you have questions about this proposed rulemaking, call or email Mr. Rob Nakama, Sector Puget Sound Waterways Management Division, U.S. Coast Guard; telephone 206–217–6089, email
On January 26, 2022, the Hydroplane and Raceboat Museum notified the Coast Guard that it will be conducting test trials of a high speed watercraft on Lake Washington from 10 a.m. until 2 p.m. on May 24, 2022. Hazards associated with the test trial of a high speed watercraft include vessel collisions, unusual wake and accidental catastrophic human injury or death. The Captain of the Port Sector Puget Sound (COTP) has determined that potential hazards associated with the test trial would be a safety concern for anyone within a 4,000-yard oval radius of the planned test area. The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 4,000-yard radius of the test area before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).
The COTP is proposing to establish a safety zone from 10 a.m. until 2 p.m. on May 24, 2022. The safety zone would cover all navigable waters within a 4,000-yard oval radius from position 47°34′31″ N, 122°16′34″ W, thence to position 47°34′02″ N, 122°15′44″ W, 150 yards offshore of the Stan Sayres Memorial Hydroplane Pits downward to 150 yards off the Adams Street Boat Ramp which will be marked with buoys, located on Lake Washington. These coordinates are based on World Geodetic System (WGS 84). The
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the fact that the safety zone created by this rule is limited in size and duration. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of Lake Washington. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF–FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601–612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this rule will not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023–01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting only 4 hours that will prohibit entry within the marked area off the Stan Sayres Memorial Hydroplane Pits and Adams Street Boat Ramp, located on Lake Washington. It is categorically excluded from further review under paragraph L60(c) of Appendix A, Table 1 of DHS Instruction Manual 023–01–001–01, Rev. 1. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.2.
(a)
(b)
(c) Regulations. (1) Under the general safety zone regulations in subpart C of this part, you may not enter the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP's designated representative.
(2) To seek permission to enter, contact the COTP or the COTP's representative by VHF Channel 16. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
Copyright Royalty Board, Library of Congress.
Proposed rule; withdrawal.
The Copyright Royalty Judges withdraw a proposed rule that would have set continued, unaltered rates and terms for subpart B configurations subject to the statutory license to use nondramatic musical works to make and distribute phonorecords of those works (the Mechanical License).
The Copyright Royalty Board is withdrawing the proposed rule published June 25, 2021 (86 FR 33601) as of March 24, 2022.
Anita Brown, Program Specialist, (202) 707–7658,
The Copyright Royalty Judges (Judges) received a Motion to Adopt Settlement of Statutory Royalty Rates and Terms for Subpart B Configurations (Motion) from National Music Publishers' Association, Inc. and Nashville Songwriters Association International (together, Licensors) and Sony Music Entertainment, UMG Recordings, Inc., and Warner Music Group Corp. (together, Labels). The Licensors and Labels (together, Moving Parties) sought approval of a partial settlement of the license rate proceeding before the Judges titled
Section 801(b)(7)(A) of the Copyright Act authorizes the Judges to adopt rates and terms negotiated by “some or all of the participants in a proceeding at any time during the proceeding” provided the settling parties submit the negotiated rates and terms to the Judges for approval. That provision directs the Judges to provide those who would be bound by the negotiated rates and terms an opportunity to comment on the agreement.
The Judges published the proposed settlement in the
In their comments, the Moving Parties reasserted their respective “significant interest[s]” in the proceeding.
The Moving Parties' comment in support of adoption of the settlement contained additional material,
Section 801(b)(7)(A) of the Copyright Act is clear that the Judges have the authority to adopt settlements between some or all of the participants to a proceeding at any time during a proceeding, so long as those that would be bound by the agreed rates and terms are given an opportunity to comment.
Regardless of the comments of interested parties or participants, the Judges are not compelled to adopt a settlement to the extent it includes provisions that are inconsistent with the statutory license.
As the Register of Copyrights (Register) observed in the 2009 review of the Judges' decision, nothing in the statute precludes rejection of any portions of a settlement that would be contrary to provisions of the applicable license or otherwise contrary to the statute.
The Judges received a relatively large number of negative comments from interested parties. The only participant who objected to the proposed settlement was GEO. His objections tracked many of the negative comments by other parties who are not participants but who could be bound by the regulation. The Judges have also reviewed the proposed settlement for consistency with the law and the statutory license.
The comments of interested parties in this proceeding were uniformly negative regarding the proposed settlement. Their comments were largely overlapping and are summarized, along with the Moving Parties' comments as follows.
The Moving Parties downplayed the importance of Subpart B Configurations in the universe of music consumption.
More than one commenter cited publications of the Recording Industry Association of America (RIAA) that give perspective to the apparent diminution of Subpart B Configurations, both to the rightsholders and to music consumers.
Commenter Corton detailed the rightsholders' mechanical license earnings from vinyl and CD albums as compared to downloading or streaming individual tracks.
Commenter Roseanne Cash asserted that mechanical royalties are “one of the most reliable ways a songwriter can still make a minimum-to-decent wage . . . .” Comments of Roseanne Cash at 1 (Aug. 2, 2021). She asserted that the need for fair subpart B rates is “more dire because of the lack of fairness in compensation from streaming services. Streaming services are not in the music business. They are in the tech business, and they have built multi-billion dollar profit machines on the back of songwriters and musicians whom they use as loss-leader content.”
Almost every commenter emphasized that the subpart B mechanical rates have remained unchanged for well over a decade, since 2006.
Commenters advocated application of an inflation adjustment beginning, at a minimum, in 2006.
More than one commenter questioned whether the underlying negotiations could be, in fact, arm's length transactions because of the vertical integration of music publishing and recording. The proposed settlement at issue was negotiated by and among the “three major, multinational record conglomerates UMG, SME and WMG, the US music publisher trade group NMPA (whose largest members include the music publishing affiliates of those major record companies), and
When the Settling Parties gave notice of their impending settlement, they included reference to a separate memorandum of understanding between NMPA and the record labels. Notice of Settlement in Principle (Mar. 2, 2021) 1 (“NMPA, UMG, WMG and SME have also reached an agreement in principle concerning a separate memorandum of understanding addressing certain related issues.”)
Moving Parties stated, categorically, that no publisher would negotiate a below-market mechanical royalty rate and extend that rate to competitors of its “sister record company.”
In the Motion seeking adoption of the settled rates and terms, the Moving Parties averred that the settlement would continue subpart B rates at their current levels and that the late fee provisions in the current regulations would “continue to be applicable” to the Labels “and all other licensees” of the mechanical rights at issue in subpart B. Motion at 3. Immediately preceding their synopsis of the settlement terms, however, in a section headed “Parties,” the Moving Parties indicated “[c]oncurrent with the settlement, the Joint Record Company Participants and NMPA have separately entered into a memorandum of understanding addressing certain negotiated licensing processes and late fee waivers.” Motion at 3.
Commenters assailed a lack of transparency in the settlement with regard to the memorandum of understanding (MOU). They contended that there must be a hidden
The Moving Parties contended that the MOU is a private contract and not something to be codified as it does not address statutory rates.
Further, the MOU contains a late fee waiver provision, contrary to published regulations, which add a late fee of up to 1.5% per month until the rightsholder receives royalties that are due monthly.
Restating their particularized argument, the Moving Parties maintained that the current MOU was the fourth such arrangement between Labels and NMPA to address “mechanical licensing process issues unique to record companies.”
Several commenters professed no knowledge of the current MOU or the history of MOUs.
The Moving Parties asserted that the NMPA “protects and advances the interests of over 300 music publishers . . . and their songwriting partners . . . .” Further Comments at 2. They further asserted that NSAI is a trade organization “of over 4,000 members dedicated to serving songwriters of all genres of music.”
Several commenters, comprising independent songwriters, independent publishers, and music industry lawyers, challenged the validity of the representatives.
Claiming no voice in the negotiations that resulted in the proposed settlement, the commenters asserted that the resulting rates are contrary to statutory requirements inasmuch as they represent rates negotiated by a willing buyer and imposed on an “unwilling seller.”
The Moving Parties supported the negotiated settlement by reporting that, in the period 2006 to 2008, they spent “tens of millions of dollars litigating” the mechanical royalty rates only to have the Judges adopt the rates in place at that time as reflective of the marketplace. Further Comments at 3. They then projected that the possibility of an adjudicated change in the current subpart B rates was outweighed by the cost of litigating the rates and the uncertainty of the outcome of litigation.
Commenters took umbrage at the conclusion by NMPA, the publisher trade group, that “the game is not worth the candle.”
The only participant in the captioned proceeding to offer comments on the notice of the proposed settlement was George Johnson (GEO). The substance of his comments in opposition to adoption of the settlement tracked with the negative comments of other interested parties detailed above. GEO's filings include: GEO Fourth Opposition Motion (Aug. 10, 2021); Response and Further Opposition to Comments/Motion and Fraudulent Settlement for Subpart B Configurations (Aug. 21, 2021) (Further Opposition); Second Round of Comments (Nov. 23, 2021); Corrected Second Round of Comments (Dec. 1, 2021) (Corrected Second Comments).
GEO pointed to the RIAA report cited by other commenters to emphasize that Subpart B Configurations are a growing part of the music business, comprising 15% of the market.
GEO has long advocated inclusion of an inflation index in royalty rates set by the Judges, including the subpart B rates at issue here. In support of his advocacy, GEO has filed 27 pleadings, including motions seeking imposition of an inflation index on section 115 rates
GEO has long assailed the apparent conflict of interests when recording companies engage in negotiations with their related music publishing houses to set royalty rates for the labels to pay to publishers. In this proceeding, GEO further argued that major negotiating parties, three record labels and three publishers, are “just two hands of the same three foreign corporations
Based upon his assumption of self-dealing in this instance, GEO alleged fraud, undue influence, anti-trust violations, and international intrigue.
In his analysis of the validity of the MOU, GEO invoked the same conflicts of interest arguments. He referred to the “No. 2
GEO asserted, further, that the MOU “seems to be a clear
GEO also claimed that this MOU, although it is a fourth iteration of side agreements among the parties, was formerly a secret and that it only came to light after commenters raised questions about the reference to it in the Motion.
GEO claimed to speak for all songwriters and independent or self-publishers. He contended he abandoned his membership in NSAI because he felt NSAI did not represent his interests.
GEO's comments repeated the refrain of other commenters. He and they disagree with the settlement proposed by trade organizations that claim to represent their interests. They contended that they are not willing sellers in this equation.
Several commenters cited the negotiating parties' admission that they considered the subpart B rates as insignificant in the context of section 115 licenses. GEO echoed their concerns that the copyright owners' negotiators used subpart B as a loss leader in their attempts to negotiate higher streaming royalty rates. GEO argued further that the streaming services use the frozen subpart B rates, to which NSAI and NMPA agree, as a justification for maintaining or lowering section 115 streaming rates.
GEO asserted that the section 115 licenses were “designed to help American songwriters and . . . publishers.”
GEO argued that the Moving Parties failed to provide evidence that the proposed settlement is reasonable.
GEO made several objections based on supposition, rumor, or surmise. For example, he asserted that there is “an issue of NMPA possibly getting secret `donations' from . . . major publishers which may amount
The Judges note that each faction in this discussion has alleged that the other side has failed to present evidence that the proposal is or is not a reasonable foundation upon which to base mechanical license rates and terms for subpart B musical works configurations. Although chapter 8 of the Copyright Act encourages parties to enter into settlement negotiations, ultimately the decision as to whether a
Only one
It is thus clear that the Judges' review of this or any proposed rates and terms is not a routine matter. The Judges must analyze carefully the terms of the settlement in light of the participant's objections. They must also evaluate the settlement in view of the requirements of section 115. The proposed settlement must not be contrary to the statutory terms of the mechanical license.
Weighing the objections of GEO and considering those objections in the context of the record before them, the Judges make the following conclusions.
Royalties from Subpart B Configurations are not inconsequential to the rightsholders. Subpart B Configurations are qualitatively different from the digital streaming configurations; consequently, the Judges can and do set separate rates for the Subpart B Configurations. Even though the physical and “permanent” download products are different in character from streaming uses, the Judges cannot and do not treat them with any less care and attention. Subpart B Configurations, in particular vinyl recordings, are a significant source of income for section 115 rightsholders. The royalties they generate should not be treated as
In the dynamic music industry, there is insufficient reason to conclude that a static musical works rate is reasonable. The determination rendered in 2008, with an effective date of 2006, cannot continue to bind the parties sixteen years later, absent sufficient record evidence that the
By 2020, industry data collected by the Recording Industry Association of America showed that various forms of digital streaming accounted for 83% of recorded music market revenues. Notwithstanding the decrease in revenues attributable to Subpart B Configurations, in 2020, vinyl record sales surpassed the volume of CD album sales, signaling a resurgence in vinyl as a music medium. Even if the sales figures were otherwise, however, sixteen years at a static rate is unreasonable under the current record, if for no other reason than the continuous erosion of the value of the dollar by persistent inflation that recently has increased significantly. In this regard, application of a consumer price index cost of living increase, beginning in 2006, would yield a statutory subpart B royalty rate for 2021 of approximately $0.12 per unit as compared with the $0.091 that prevails, which adjustment, as noted
The disparity between the static rate and the dynamic market is even more stark when considering the “controlled composition clause” that contractually lowers the statutory rate by 25%. Add to that the record labels' limit on album royalties to ten tracks, regardless of the number of songs actually included in each album. In other words, the statutory rate is not the effective rate record labels use in compensating songwriters and publishers.
The proposed settlement did not include any adjustment to subpart B rates, not even an indexed increase. Adjudication of rates may provide the parties an opportunity to present
Conflicts are inherent if not inevitable in the composition of the negotiating parties. Vertical integration linking music publishers and record labels raises a warning flag. No party opposing the present settlement has evinced actual or implied evidence of misconduct, other than the corporate structure of the record labels on the one hand and the publishers on the other. While corporate relationships alone do not suffice as probative evidence of wrongdoing, they do provide smoke; the Judges must therefore assure themselves that there is no fire. The potential for self-dealing present in the negotiation of this proposed settlement and the questionable effects of the MOU are sufficient to question the reasonableness of the settlement at issue as a basis for setting statutory rates and terms.
The Moving Parties noted in passing that their agreement also included a memorandum of understanding that did not have any impact on the reasonableness of the settlement terms. Reasonableness, however, is undermined by associated bargained-for provisions as to which the Judges have an inadequate basis for evaluation.
The Moving Parties assertion that the MOU is “irrelevant” and inconsequential to the settlement terms is facially invalid. First, the MOU is a side agreement between recording companies and publishers, which does not include participation by or agreement of either songwriters or a significant number of owners of musical works subject to the section 115 license. Second, the MOU grants a late fee waiver to licensees that are party to the agreement. This waiver of fees seems to have an indirect impact on proposed royalty returns to rightsholders. Without more complete knowledge of the implications of the MOU, however, the Judges are unable to evaluate the proposed settlement as a whole.
The Moving Parties asserted that the MOU is a private contract between private parties. It appears rather to be an attempt to modify the application of the terms of statutory licenses they allegedly are negotiating in the context of a rate-setting proceeding under the Copyright Act. By its terms, the current MOU was conditional and was not effective until the parties to the MOU (the Moving Parties,
Further, in their pleadings, the Moving Parties asserted that they withheld information regarding the MOU because they considered it “irrelevant” to statutory rate setting. Determining relevance is a judgment call reserved to the Judges. The contracting parties cannot hide changed application of a statutory rate scheme behind a “private contract” when that contract has implications for non-contracting parties and the “private contract” details necessarily inform the reasonableness of the proposed settlement. The Judges, not a participant, can and will decide what is “irrelevant” to this rate setting proceeding.
Finally, the Moving Parties justified the MOU by noting that it is the fourth iteration of similar agreements. The fact that this MOU is the fourth of its kind does not prove that it is appropriate or an acceptable corollary to the statutory rates set by this tribunal. Repetition alone does not make a practice advisable or fair. Nor does it indicate that the practice or its details are universally known and approved.
Parties have an undeniable right of contract. The Judges, however, are not required to adopt the terms of any contract, particularly when the contract at issue relates in part, albeit by reference, to additional unknown terms that indicate additional unrevealed consideration passing between the parties, which consideration might have an impact on effective royalty rates.
The licensors in this proceeding are represented by their respective trade associations. The commenters asserted that the trade associations, NSAI in particular, did not appear to be representing the best interests of the music creators. It is not within the purview of the Judges to select or direct what parties file petitions to participate in rate setting proceedings. Dissatisfaction with the actions of a participant can only be contested by another participant, presenting competent evidence to inform the Judges of a reasonable outcome; it is not a proper or adequate basis to decline to adopt the settlement.
The Moving Parties justified their negotiating strategy and the outcome by asserting that the Judges previously continued existing rates after the interested parties spent “tens of millions” of dollars litigating the same rates in the mid-2000s. As the Moving Parties noted, however, the Judges' decision at that time was reflective of the conditions of that market. The Moving Parties seemed to be projecting what actions the Judges might take on a new evidentiary record. The 2022 recorded music marketplace is not the 2006 marketplace. The Judges' determination of current rates and terms should be reflective of the current marketplace.
Contrary to GEO's assertions that the section 115 licenses were “designed to help American songwriters,” the statutory rates are intended to benefit both rightsholders
GEO alleged that, under the MOU, NMPA might receive “secret `donations' from these major publishers which may amount
For the avoidance of doubt, as provided in Section 10.3 of MOU1, it shall not be a breach of this MOU4 if NMPA chooses to seek a donation from Participating Publishers as part of the enrollment process. If, after the Administrator's final accounting and resolution of any disputes, Participating Publisher claims for a given Phase of Group 6 are for less than the 11 payments made by a Participating Record Company for such Phase, then the Administrator shall return any unclaimed monies to the Participating Record Company, and Section 4.21 of MOU1 shall apply, unless RIAA and NMPA agree to simplified procedures for the refund process.
Further Comments, Exhibit C (Memorandum of Understanding) at 10–11.
The provisions of Sections 10.3 and 4.21 of MOU 1 are not in the record of this proceeding and remain unknown to the Judges. They may support GEO's concerns regarding the provision condoning NMPA's solicitation of a “donation” as part of an enrollment process. GEO did not provide an
If adopted by the Judges, the proposed settlement is one that would bind not only the parties to the MOU, but also songwriter licensors. Songwriters, however, are not parties to the MOU and would apparently not share in any benefit that might flow to licensors under the MOU.
The Judges reviewed the proposed settlement with regard to whether any portions of the settlement would be contrary to provisions of the applicable license or otherwise contrary to the statute, pursuant to the Register's prior rulings.
Rightsholders are free to choose their representation in these proceedings. Admittedly, individual songwriters and self-publishers have traditionally chosen not to expend the resources necessary to participate in these proceedings at the same level as trade organizations and major technology companies. Nonetheless, the outcomes of these proceedings can have a significant impact on the lives of the individual rightsholders. In this proceeding, the Judges received lengthy comments from SGA, which claims to represent thousands of songwriters. For SGA's comments to have independent influence, however, SGA would have needed to join the proceeding as a participant. Nonetheless, with regard to the present proposed settlement, the comments of non-participants cumulatively served to amplify those of the objecting participant.
Pursuant to section 801(b)(7)(A)(ii), based on the totality of the present record—including the Judges' application of the law to that record, as well as GEO's objections, which, as noted
Agricultural Marketing Service, USDA.
Notice: Intent to reestablish charter and call for nominations.
Through this Notice, the U.S. Department of Agriculture (USDA) is announcing the following: Its intent to reestablish the Charter of the Fruit and Vegetable Industry Advisory Committee (FVIAC), which expires March 16, 2022; its call for nominations to fill up to 25 upcoming vacancies for appointments in 2022, and its call for nominations for a pool of candidates to fill future unexpected vacancies in any position categories should that occur. The FVIAC is seeking members who represent the fruit and vegetable industry including growers, shippers, wholesalers/distributors, brokers, retailers/restaurant representatives, state agencies, state departments of agriculture, foodservice suppliers, and fresh-cut and other fruit and vegetable processors. The FVIAC should also include representatives of farmers markets and food hubs, organic and non-organic fruit and vegetable representatives, farmer organizations, and produce trade associations. Please note, individuals who are federally registered lobbyists, appointed to committees to exercise their own individual best judgment on behalf of the government (
The current FVIAC Charter expires on March 16, 2022. The current representative terms expire July 9, 2022. Nomination packages including a cover letter to the Secretary, the nominee's typed resume or curriculum vitae, and a completed USDA Advisory Committee Membership Background Information Form AD–755 must be postmarked on or before May 31, 2022.
Mr. Darrell Hughes serves as the Designated Federal Officer and can be reached at (202) 378–2576 or by email
The AMS Specialty Crops Program strongly prefers comments be submitted electronically. However, written comments may be submitted (
Pursuant to the Federal Advisory Committee Act (FACA) (5 U.S.C. app. 2), notice is hereby given that the Secretary of Agriculture intends to reestablish the FVIAC for two years. The purpose of the FVIAC is to examine the full spectrum of issues faced by the fruit and vegetable industry and provide suggestions and ideas to the Secretary on how USDA can tailor its programs to better meet the fruit and vegetable industry's needs.
The Deputy Administrator of the AMS Specialty Crops Program serves as the FVIAC Executive Secretary. Representatives from USDA mission areas and agencies affecting the fruit and vegetable industry could be called upon to participate in the FVIAC's meetings as determined by the FVIAC Executive Secretary and the FVIAC.
Industry members are appointed by the Secretary of Agriculture and serve 2-year terms, with a maximum of three 2-year terms. The Secretary of Agriculture appointed 24 members in 2020. Twelve (12) members have served two terms and twelve (12) members have served one term. All the terms expire July 9, 2022.
The Secretary of Agriculture will appoint members for the upcoming vacancies to serve a 2-year term of office beginning in 2022 and ending in 2024. The Secretary of Agriculture will hold nominations received that could fill future unexpected vacancies in any of the position categories as a pool of candidates that the Secretary can draw upon as replacement appointees if unexpected vacancies occur. A person appointed to fill a vacancy will serve for the remainder of the 2-year term of the vacant position. The Secretary of Agriculture invites those individuals, organizations, and groups affiliated with the categories listed in the
The full Committee expects to meet at least twice a year in-person, virtually, or by teleconference, and the meetings will be announced in the
The Secretary of Agriculture seeks a diverse group of members representing a broad spectrum of persons interested in providing suggestions and ideas on how USDA can tailor its programs to meet the fruit and vegetable industry's needs. Equal opportunity practices will be followed in all appointments to the FVIAC in accordance with USDA policies. To ensure that FVIAC recommendations take into account the needs of the diverse groups served by USDA, membership should reflect the diversity of the industry in terms of the experience of members, methods of production and distribution, marketing strategies, and other distinguishing factors, including but not limited to individuals from historically underserved communities, that will bring different perspectives and ideas to the table.
The information collection requirements concerning the nomination process have been previously cleared by the Office of Management and Budget (OMB) under OMB Control No. 0505–0001.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by April 29, 2022 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Notice; request for comments.
In compliance with the Paperwork Reduction Act, the U.S. Department of Agriculture (USDA), is requesting comments concerning a proposed authorization to conduct the USDA Generic Solution for Solicitation for Funding Opportunity Announcement information collection request. This is a new information collection request.
Submit written comments on or before May 31, 2022.
We invite you to submit comments on this notice. For proper delivery, in your comment, specify “USDA Generic Solution for Solicitation for Funding Opportunity Announcement Information Collection Request (ICR).”
Steve O'Neill, 202–720–0038,
The U.S. Department of Agriculture (USDA) conducts a pre-clearance consultation program to provide the public and Federal agencies an opportunity to comment on proposed, revised, and continuing information collections before submitting them to the Office of Management and Budget (OMB).
This program helps to ensure requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements can be properly assessed.
Periodically USDA solicits grant applications on
A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person will be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6. USDA intends to seek approval from OMB for this collection of information for 3 years.
Interested parties are encouraged to provide comments to the individual listed in the
Comments must be written to receive consideration, and they will be summarized and may be included in the request for OMB approval of the final ICR. The comments will also become a matter of public record. Comments responsive to this request will be made available on-line, without redaction, as part of the submission to OMB; therefore, USDA is particularly interested in comments that:
• 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, for example, permitting electronic submission of responses.
USDA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval. At that time, USDA will issue another
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by April 29, 2022 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The first section of the college application requests the applicant to include biographical information (
The information will be used to assist the selecting agencies in their process of identifying potential recipients of the scholarship. The program would not be able to function consistently without this annual collection.
Census Bureau, Department of Commerce.
Renewal of the Census Scientific Advisory Committee charter.
The Census Bureau is publishing this notice to announce the renewal of the Census Scientific Advisory Committee (Committee or CSAC). The purpose of the Committee is to provide advice to the Director of the Census Bureau on the full range of Census Bureau programs and activities including communications; decennial, demographic, and economic statistics; field operations; geography; and information technology. Additional information concerning the Committee can be found by visiting the Committee's website at:
Shana J. Banks, Advisory Committee Branch Chief, Office of Program, Performance and Stakeholder Integration (PPSI),
In accordance with the Federal Advisory Committee Act (FACA), the Secretary of the Department of Commerce (Secretary) intends to renew the CSAC. The Secretary has determined that the work of the Committee is in the public interest and relevant to the duties of the Census Bureau. The CSAC will operate under the provisions of FACA and will report to the Secretary through the Director of the Census Bureau. The CSAC will advise the Director of the Census Bureau on the full range of Census Bureau programs and activities.
1. The Committee will address census policies, research and methodology, tests, operations, communications/messaging, and other activities to ascertain needs and best practices to improve censuses, surveys, operations, and programs.
2. The Committee will provide formal review and feedback on internal and external working papers, reports, and other documents related to the design and implementation of census programs and surveys.
3. The Committee will provide scientific and technical expertise from the following disciplines: Demographics, economics, geography, psychology, statistics, survey methodology, social and behavorial sciences, information technology and computing, marketing and other fields of expertise, as appropriate, to address Census Bureau program needs and objectives.
4. The Committee functions solely as an advisory body under the FACA. The function of this Committee will be a “Scientific Technical Program Advisory Board.”
1. The Committee consists of up to 21 members who serve at the discretion of the Director of the Census Bureau.
2. The Committee aims to have a balanced representation among its members, considering such factors as geography, scientific expertise, community involvement, and knowledge of census programs and/or activities, and, where possible, the Census Bureau will also consider the ethnic, racial, and gender diversity and various abilities of the United States population.
3. The Committee aims to include members from diverse backgrounds, including state, local and tribal governments; academia; research, national and community-based organizations; and, the private sector.
4. Members will serve as Special Government Employees (SGEs). SGEs will be subject to the ethics rules applicable to SGEs. Members will be individually advised of the capacity in which they will serve through their appointment letters.
5. SGEs will be selected from academia, public and private enterprise, and nonprofit organizations, which are further diversified by business type or industry, geography, and other factors.
6. Membership is open to persons who are not seated on other Census Bureau stakeholder entities (
7. Members will serve for a three-year term. All members will be evaluated at the conclusion of their first term with the prospect of renewal, pending Committee needs. Active attendance and participation in meetings and activities (
8. Members will be selected on a standardized basis, in accordance with applicable Department of Commerce guidance.
1. Members of the Committee serve without compensation, but receive reimbursement for Committee-related travel and lodging expenses.
2. The Census Bureau will convene two CSAC meetings per year, budget and environmental conditions permitting, but additional meetings may be held as deemed necessary by the Census Bureau Director or Designated Federal Officer. Committee meetings are open to the public in accordance with FACA.
3. Members must be able to actively participate in the tasks of the Committee, including, but not limited to, regular meeting attendance, Committee meeting discussant responsibilities, review of materials, as well as participation in conference calls, webinars, working groups, and/or special committee activities.
4. The Department of Commerce is committed to equal opportunity in the workplace and seeks diverse Committee membership.
Robert L. Santos, Director, Census Bureau, approved the publication of this Notice in the
Office of the Secretary, Department of Commerce.
General notice announcing population estimates.
This notice announces the voting age population estimates as of July 1, 2021, for each state and the District of Columbia. We are providing this notice in accordance with the 1976 amendment to the Federal Election Campaign Act.
Karen Battle, Chief, Population Division, U.S. Census Bureau, Room HQ–6H174, 4600 Silver Hill Road, Washington, DC 20233. Phone: 301–763–2071. Email:
Under the requirements of the 1976 amendment to the Federal Election Campaign Act, title 52, United States Code, section 30116(e), I hereby give notice that the estimates of the voting age population for July 1, 2021, for each state and the District of Columbia are as shown in the following table.
I have certified these estimates for the Federal Election Commission.
Gina Raimondo, Secretary, Department of Commerce, approved the publication of this Notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) finds that revocation of the countervailing duty (CVD) order on certain coated paper suitable for high-quality print graphics using sheet-fed presses (coated paper) from the People's
Applicable March 30, 2022.
Michael Romani, Office I, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482–7883.
On December 1, 2021, Commerce initiated its second sunset review of the countervailing duty order
Commerce received an adequate substantive response from the domestic industry within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i).
The merchandise covered by scope of the
Certain coated paper includes: (a) Coated free sheet paper and paperboard that meets this scope definition; (b) coated groundwood paper and paperboard produced from bleached chemi-thermo-mechanical pulp (BCTMP) that meets this scope definition; and (c) any other coated paper and paperboard that meets this scope definition.
Certain coated paper is typically (but not exclusively) used for printing multicolored graphics for catalogues, books, magazines, envelopes, labels and wraps, greeting cards, and other commercial printing applications requiring high quality print graphics.
Specifically excluded from the scope are imports of paper and paperboard printed with final content printed text or graphics.
Imports of the subject merchandise are provided for under the following categories of the HTSUS: 4810.14.11, 4810.14.1900, 4810.14.2010, 4810.14.2090, 4810.14.5000, 4810.14.6000, 4810.14.70, 4810.19.1100, 4810.19.1900, 4810.19.2010, 4810.19.2090, 4810.22.1000, 4810.22.50, 4810.22.6000, 4810.22.70, 4810.29.1000, 4810.29.5000, 4810.29.6000, 4810.29.70, 4810.32.10, 4810.32.30, 4810.32.65, 4810.39.12, 4810.39.14, 4810.39.30, 4810.39.65, 4810.92.12, 4810.92.14, 4810.92.30, 4810.92.65, 4810.29.1035, 4810.29.70, 4810.92.1235, 4810.92.1435, and 4810.92.6535. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the
All issues raised in this sunset review are addressed in the Issues and Decision Memorandum.
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 APO of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a). Timely notification of 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.
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
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
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is amending its final results in the administrative review of the antidumping duty order on large power transformers (LPTs) from the Republic of Korea (Korea) for the period August 1, 2019, through July 31, 2020, to correct a ministerial error.
Applicable March 30, 2022.
John Drury, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401
On March 8, 2022, Commerce published the final results of the 2019–2020 administrative review of LPTs from Korea.
The scope of this order covers large liquid dielectric power transformers (LPTs) having a top power handling capacity greater than or equal to 60,000 kilovolt amperes (60 megavolt amperes), whether assembled or unassembled, complete or incomplete.
Incomplete LPTs are subassemblies consisting of the active part and any other parts attached to, imported with or invoiced with the active parts of LPTs. The “active part” of the transformer consists of one or more of the following when attached to or otherwise assembled with one another: The steel core or shell, the windings, electrical insulation between the windings, the mechanical frame for an LPT.
The product definition encompasses all such LPTs regardless of name designation, including but not limited to step-up transformers, step-down transformers, autotransformers, interconnection transformers, voltage regulator transformers, rectifier transformers, and power rectifier transformers.
The LPTs subject to this order are currently classifiable under subheadings 8504.23.0040, 8504.23.0080 and 8504.90.9540 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 this order is dispositive.
Section 751(h) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.224(f) define a “ministerial error” as an error “in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.”
The petitioners argue that Commerce failed to fully implement certain changes that the record indicates, and Commerce recognized, were necessary for one U.S. sale, to account for the proper reporting of service-related revenues. We agree with the petitioners and, therefore, we have corrected the error.
Commerce determines that the following amended weighted-average dumping margins exist for the period August 1, 2019, through July 31, 2020:
We will disclose the calculation memorandum used in our analysis to parties to this segment of the proceeding within five days of the date of the publication of these amended final results pursuant to 19 CFR 351.224(b).
Pursuant to section 751(a)(2)(C) of the Act and 19 CFR 351.212(b)(1), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with these amended final results of the administrative review.
In accordance with 19 CFR 351.212(b)(1), Hyosung reported the entered value of its U.S. sales such that we calculated importer-specific
For the companies which were not selected for individual examination, we will instruct CBP to assess antidumping duties at an
The amended final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the amended final results of this review and for future deposits of estimated duties, where applicable.
The following cash deposit requirements will be effective retroactively for all shipments of subject merchandise that entered, or were withdrawn from warehouse, for consumption on or after March 8, 2022, the date of publication of the
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during the period of review. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping and/or countervailing duties did occur and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(h) and 19 CFR 351.221(b)(5).
National Institute of Standards and Technology, Department of Commerce.
Extension of the call for nominations to serve on the Internet of Things Advisory Board.
The National Institute of Standards and Technology (NIST or Institute) is extending the call for nominations to serve on the inaugural Internet of Things Advisory Board. An earlier notice had requested nominations by February 28, 2022. Registered Federal lobbyists may not serve on NIST Federal Advisory Committees in an individual capacity.
Nominations to serve on the inaugural IoTAB must be received by 5:00 p.m. Eastern Time on April 14, 2022.
Please submit nominations to Alicia Chambers, Committee Liaison Officer, National Institute of Standards and Technology, 100 Bureau Drive, MS 1000, Gaithersburg, MD 20899 and Barbara Cuthill, Designated Federal Officer, National Institute of Standards and Technology, 100 Bureau Drive, MS 2000, Gaithersburg, MD 20899. Nominations may also be submitted via email to
Alison Kahn, Electronics Engineer, National Institute of Standards and Technology, 100 Bureau Drive, MS 2000, Gaithersburg, MD 20899. Her email is
The Board shall advise the Federal Working Group with respect to—
a. the identification of any Federal regulations, statutes, grant practices, programs, budgetary or jurisdictional challenges, and other sector-specific policies that are inhibiting, or could inhibit, the development of the Internet of Things;
b. situations in which the use of the Internet of Things is likely to deliver significant and scalable economic and societal benefits to the United States, including benefits from or to—
i. smart traffic and transit technologies;
ii. augmented logistics and supply chains;
iii. sustainable infrastructure;
iv. precision agriculture;
v. environmental monitoring;
vi. public safety; and
vii. health care;
c. whether adequate spectrum is available to support the growing Internet of Things and what legal or regulatory barriers may exist to providing any spectrum needed in the future;
d. policies, programs, or multi-stakeholder activities that—
i. promote or are related to the privacy of individuals who use or are affected by the Internet of Things;
ii. may enhance the security of the Internet of Things, including the security of critical infrastructure;
iii. may protect users of the Internet of Things; and
iv. may encourage coordination among Federal agencies with jurisdiction over the Internet of Things;
e. the opportunities and challenges associated with the use of Internet of Things technology by small businesses; and
f. any international proceeding, international negotiation, or other international matter affecting the Internet of Things to which the United States is or should be a party.
The Board shall submit to the Internet of Things Federal Working Group a report that includes any of its findings or recommendations. The report will be administratively delivered to the Internet of Things Federal Working Group through the Director of the National Institute of Standards and Technology (NIST).
The Board shall set its own agenda in carrying out its duties. The Federal Working Group may suggest topics or items for the Board to study, and the Board shall take those suggestions into consideration in carrying out its duties.
The Board will function solely as an advisory body, in accordance with the provisions of FACA.
The Board members shall serve terms of two years (unless the Board terminates earlier). Vacancies are filled as soon as highly qualified candidates in a needed area of stakeholder interest are identified and available to serve. Members of the Board shall serve as representative members. Full-time or permanent part-time Federal officers or employees will not be appointed to the Board. Members must be citizens of the United States of America.
Members of the Board shall not be compensated for their services. Members of the Board, while attending meetings of the Board away from their homes or regular place of business, may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by Section 5703 of Title 5, United States Code, for individuals intermittently serving in the Government without pay.
Members shall not reference or otherwise utilize their membership on the Board in connection with public statements made in their personal capacities without a disclaimer that the views expressed are their own and do not represent the views of the Board, the Federal Working Group, NIST, or the Department of Commerce.
The Secretary will appoint the Board's Chair from among the approved members in accordance with policies and procedures and, in doing so, shall determine the term of service for the Board's Chair.
Meetings will be conducted at least twice each year.
1. IoTAB meetings are open to the public.
2. Meeting will be virtual.
NIST uses a nomination process to identify candidates for the Board. Nominations are requested through an announcement in the
The Board members shall serve terms of two years (unless the Board terminates earlier). Vacancies are filled as soon as highly qualified candidates in a needed area of stakeholder interest are identified and available to serve.
The Department of Commerce seeks a broad-based and diverse IoTAB membership.
Office of the Under Secretary of Defense for Personnel and Readiness (USD(P&R)), Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by May 31, 2022.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Defense Human Resources Activity, 4800 Mark Center Drive, Suite 08F05, Alexandria, VA 22350, LaTarsha Yeargins, 571–372–2089.
Office of the Under Secretary of Defense for Personnel and Readiness (USD(P&R)), Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by May 31, 2022.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Defense Human Resources Activity, 4800 Mark Center Drive, Suite 08F05, Alexandria, VA 22350, LaTarsha Yeargins, 571–372–2089.
Washington Headquarters Services (WHS), Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by May 31, 2022.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Washington Headquarters Services/Facilities Services Directorate/Standards and Compliance Division, 1155 Defense Pentagon, Washington, DC 20301, Ariam Kloehn, or call 703–695–3300.
Department of the Navy, Department of Defense (DoD).
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by April 29, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Angela Duncan, 571–372–7574,
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Ms. Duncan at
On March 24, 2022, the Commission issued an order in Docket No. EL22–27–000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e, instituting an investigation into whether Southern Company Services, Inc.'s
The refund effective date in Docket No. EL22–27–000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL22–27–000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2021), within 21 days of the date of issuance of the order.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFile” link at
The Federal Energy Regulatory Commission (FERC) and the Nuclear Regulatory Commission (NRC) will hold a joint meeting on Thursday, March 31, 2022. The open meeting will be held virtually and is expected to begin at 9:00 a.m. and conclude at approximately 11:30 a.m. Eastern Time. Members of the public may attend the open session. Commissioners from both agencies are expected to participate.
The format for the joint meeting will consist of discussions between the two sets of Commissioners following presentations by their respective staffs. In addition, a representative of the North American Electric Reliability Corporation (NERC) will attend and participate in this meeting. Attached is an agenda of the meeting.
A free webcast of this event will be made available for viewing through the NRC's Webcast portal at
All interested persons are invited to the open meeting. Pre-registration is not required and there is no fee to attend this joint meeting. Questions about the meeting should be directed to Lodie White at
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file comments, recommendations, terms and conditions, and prescriptions using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted and is ready for environmental analysis at this time.
The Council on Environmental Quality (CEQ) issued a final rule on July 15, 2020, revising the regulations under 40 CFR parts 1500–1518 that federal agencies use to implement NEPA (see Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 FR 43,304). The Final Rule became effective on and applies to any NEPA process begun after September 14, 2020. An agency may also apply the regulations to ongoing activities and environmental documents begun before September 14, 2020, which includes the proposed Goldendale Project. Commission staff intends to conduct its NEPA review in accordance with CEQ's new regulations.
l.
The water supply used to initially fill the lower reservoir as well as to provide make-up water would be purchased from KPUD and would be obtained from KPUD's existing intake pond on the Columbia River. The project water fill line would connect to a new KPUD-owned flanged water supply service connection in a water supply vault located near the lower reservoir. Within the vault, and just downstream of the service connection, there would be a project shut-off and throttling valve to control the initial fill and make-up water flow rate into the lower reservoir. The initial fill would require 7,640 acre-feet of water and would be completed in about six months at an average flow rate of approximately 21 cubic feet per second (maximum flow rate available is 35 cubic feet per second). It is estimated that the project would need 360 acre-feet of water each year to replenish water lost through evaporation and seepage.
m. In addition to publishing the full text of this document in the
All filings must (1) bear in all capital letters the title “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
You may also register online at
n.
o. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of this notice.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental document, that will discuss the environmental impacts of the Calcasieu Pass Uprate Amendment Project (Project) involving operation of facilities by Venture Global Calcasieu Pass, LLC (Calcasieu Pass) in Cameron Parish, Louisiana. The Commission will use this environmental document in its decision-making process to determine whether the project is in the public interest.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies regarding the project. As part of the National Environmental Policy Act (NEPA) review process, the Commission takes into account concerns the public may have about proposals and the environmental impacts that could result from its action whenever it considers the issuance of an authorization. This gathering of public input is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the environmental document on the important environmental issues. Additional information about the Commission's NEPA process is described below in the
By this notice, the Commission requests public comments on the scope of issues to address in the environmental document. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 p.m. Eastern Time on April 25, 2022. Comments may be submitted in written form. Further details on how to submit comments are provided in the
Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the environmental document. Commission staff will consider all written comments during the preparation of the environmental document.
If you submitted comments on this project to the Commission before the opening of this docket on December 3, 2021, you will need to file those comments in Docket No. CP22–25–000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
Venture Global provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” which addresses typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. This fact sheet along with other landowner topics of interest are available for viewing on the FERC website (
There are three methods you can use to submit your comments to the Commission. Please carefully follow these instructions so that your comments are properly recorded. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208–3676 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number (CP22–25–000) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
Additionally, the Commission offers a free service called eSubscription which makes it easy to stay informed of all issuances and submittals regarding the dockets/projects to which you subscribe. These instant email notifications are the fastest way to receive notification and provide a link to the document files which can reduce the amount of time you spend researching proceedings. Go to
Calcasieu Pass proposes to increase the Export Terminal's authorized peak liquefaction capacity achievable under optimal conditions from 12.0 million metric tons per annum to 12.4 million metric tons per annum of LNG—or from approximately 620 billion cubic feet to approximately 640.666 billion cubic feet per year (gas equivalence). According to Calcasieu Pass, this proposed increase in the peak liquefaction capacity reflects refinements in the conditions and assumptions concerning the maximum potential operations. The requested increase does
The general location of the Calcasieu Pass Export Terminal is shown in appendix 1.
Any environmental document issued by the Commission will discuss impacts that could occur as a result of the proposed project uprate under the relevant general resource areas:
• Environmental justice;
• air quality; and
• reliability and safety.
Commission staff will also evaluate reasonable alternatives to the proposed project or portions of the project and make recommendations on how to lessen or avoid impacts on the various resource areas. Your comments will help Commission staff identify and focus on the issues that might have an effect on the human environment and potentially eliminate others from further study and discussion in the environmental document.
Commission staff will determine whether to prepare an Environmental Assessment (EA) or an Environmental Impact Statement (EIS), which will present Commission staff's independent analysis of the issues. If Commission staff prepares an EA, a
With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate in the preparation of the environmental document.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the applicable State Historic Preservation Office(s), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project and includes a mailing address with their comments. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If you need to make changes to your name/address, or if you would like to remove your name from the mailing list, please complete one of the following steps:
(1) Send an email to
(2) Return the attached “Mailing List Update Form” (appendix 2).
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208–FERC, or on the FERC website at
Public sessions or site visits will be posted on the Commission's calendar located at
Environmental Protection Agency (EPA).
Notice; request for nominations.
The Environmental Protection Agency (EPA) is inviting nominations for membership on the Farm, Ranch, and Rural Communities Advisory Committee (FRRCC). The purpose of the FRRCC is to provide policy advice, information, and recommendations to the EPA Administrator on a range of environmental issues and policies that are of importance to agriculture and rural communities.
To be considered for 2022 appointments, nominations should be submitted no later than May 16, 2022.
Submit nominations electronically with the subject line “FRRCC Membership 2022” to
General information regarding the FRRCC can be found on the EPA website at:
Venus Welch-White, Designated Federal Officer for the FRRCC, U.S. EPA, 1200 Pennsylvania Avenue NW, Mail Code 1101A, Washington, DC 20460; telephone number: 202–564–7719; email address:
EPA established the FRRCC in 2008 pursuant to the Federal Advisory Committee Act, Public Law 92–463, in order to help EPA build a more positive and proactive relationship with the agricultural industry in furtherance of EPA's mission to protect human health and the environment. The FRRCC serves as part of EPA's efforts to expand cooperative working relationships with the agriculture community and others who are interested in agricultural issues and achieving greater progress in environmental protection. The FRRCC provides advice and recommendations to the EPA Administrator on environmental issues and programs that impact, or are of concern to, farms, ranches and rural communities. Topics addressed may include climate change, water or air quality issues, pesticides, toxics, food loss and waste, environmental justice, emergency response, enforcement and compliance, technology and innovation, and other topics of environmental importance pertaining to agriculture and rural communities. The charter for the FRRCC was renewed in February 2022. EPA is currently seeking members for the committee, who will be appointed for 2- or 3-year terms and may be eligible for reappointment. The membership of this committee will include a balanced representation of interested persons with relevant experience to contribute to the functions of the committee, and will be drawn from relevant sectors, including but not limited to academia, agricultural industry, nongovernmental organizations, and state, local, and tribal governments.
The full Committee expects to meet approximately twice a year, or as needed and approved by the Designated Federal Officer (DFO). Meetings will be held in Washington, DC, the EPA regions, and virtually. EPA is committed to prioritizing members' health and safety during the COVID–19 pandemic and will follow CDC guidelines when considering any in-person meeting. The Administrator may ask members to serve on Subcommittees and Workgroups to develop reports and recommendations to address specific policy issues, reflecting the priorities of the Administration. The average workload for members is approximately 5 hours per month. Members serve on the Committee in a voluntary capacity. However, EPA may provide reimbursement for travel expenses associated with official government business.
Because of the nature of the issues to be discussed, it is the intent of the Agency for the majority of Committee members to be actively engaged in farming or ranching. The membership of this committee will include a balanced representation of interested persons with relevant experience to contribute to the functions of the committee and will be drawn from a variety of relevant sectors. Members may represent farmers, ranchers, and rural communities (can include large, small, crop, livestock, commodity, and specialty producers from various regions)—and their allied industries (farm groups, rural suppliers, marketers, processors, etc.); as well as the academic/research community who research environmental issues impacting agriculture, tribal agriculture groups, state, local, and tribal government, and environmental/conservation and other nongovernmental organizations. Individuals are generally appointed to serve on the FRRCC as “Representative” members and are thus expected to represent the points of view of a particular group (
In accordance with Executive Order 14035 (June 25, 2021), EPA values and welcomes opportunities to increase diversity, equity, inclusion and accessibility on its federal advisory committees. EPA's federal advisory committees have a workforce that reflects the diversity of the American people.
In selecting committee members, EPA will consider each candidate's qualifications including, but not limited to, on whether the candidate is:
• Is actively engaged in farming.
• Occupies a senior position within their organization.
• Holds leadership positions in ag-related organizations, businesses and/or workgroups.
• Has broad agricultural experience regardless of their current position.
• Has experience working on issues where building consensus is necessary.
• Has membership in professional societies, broad-based networks or the equivalent.
• Has extensive experience in the environmental field dealing with agricultural issues.
• Provides services to producers.
• Is involved in processing, retailing, manufacturing and distribution of agricultural products.
• Possesses a professional knowledge of agricultural issues and environmental policy.
• Possesses a demonstrated ability to examine and analyze complicated environmental issues with objectivity and integrity.
• Possesses excellent interpersonal as well as oral and written communication skills.
• Possesses an ability and willingness to participate in a deliberative and collaborative process.
In addition, well-qualified applicants must be prepared to process a substantial amount of complex and technical information and have the ability to volunteer several hours per month to the Committee's activities, including participation in teleconference meetings and preparation of text for Committee reports.
Any interested person or organization may submit the names of qualified persons, including themselves. To be considered, all nominations should include the information requested below:
• Current contact information for the nominee, including the nominee's name, organization (and position within that organization), business address, email address, and daytime telephone number(s).
• A brief statement describing the nominee's interest and availability in serving on the FRRCC. Please also include the following information, as available: (1) The nominee's ability to serve as a “Representative” member and represent the point of view of a group (
• Résumé or curriculum vitae detailing the nominee's background, experience and qualifications and other relevant information.
Letters of support and recommendation will be accepted but are not mandatory. To help the agency evaluate the effectiveness of its outreach efforts, please indicate how you learned of this nomination opportunity.
Other sources, in addition to this
Notice is hereby given that the Federal Deposit Insurance Corporation (FDIC or Receiver), as Receiver for the institutions listed below, intends to terminate its receivership for said institutions.
The liquidation of the assets for each receivership has been completed. To the extent permitted by available funds and in accordance with law, the Receiver will be making a final dividend payment to proven creditors.
Based upon the foregoing, the Receiver has determined that the continued existence of the receiverships will serve no useful purpose. Consequently, notice is given that the receiverships shall be terminated, to be effective no sooner than thirty days after the date of this notice. If any person wishes to comment concerning the termination of any of the receiverships, such comment must be made in writing, identify the receivership to which the comment pertains, and be sent within thirty days of the date of this notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 34.6, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of the above-mentioned receiverships will be considered which are not sent within this time frame.
Federal Maritime Commission.
Notice.
The Federal Maritime Commission (Commission) is giving public notice that the agency has submitted to the Office of Management and Budget (OMB) for approval the continuing information collections (extensions with no changes) described in this notice. The public is invited to comment on the proposed information collections pursuant to the Paperwork Reduction Act of 1995.
Written comments must be submitted at the addresses below on or before April 29, 2022.
Comments should be addressed to: Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Shannon Joyce, Desk Officer for Federal Maritime Commission,
Please send separate comments for each specific information collection listed below, and reference the information collection's title and OMB number in your comments.
Copies of the submission(s) may be obtained by contacting Lucille Marvin at
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104–13), the Commission invites the general public and other Federal agencies to comment on proposed information collections. On December 7, 2021, the Commission published a notice and request for comments in the
In response to this notice, comments and suggestions should address one or more of the following points: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Federal Mediation and Conciliation Service (FMCS).
60-Day notice and request for comments.
The Federal Mediation and Conciliation Service (FMCS), invites the general public and other Federal Agencies to take this opportunity to comment on the following information collection request, Stakeholder Survey for Qualitative Feedback on Agency Service Delivery. This information collection request was previously approved by the Office of Management Budget (OMB) and FMCS is requesting a revision of a currently approved collection. This collection was developed as part of a Federal Government-wide effort to streamline the process for seeking feedback from the public on service delivery.
Comments must be submitted on or before May 31, 2022.
You may submit comments, identified by Stakeholder Survey for Qualitative Feedback on Agency Service Delivery, through one of the following methods:
•
•
David Thaler, 980–812–0051,
Copies of the agency questions are available here.
FMCS solicits comments to:
i. Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.
ii. Enhance the accuracy of the agency's estimates of the burden of the proposed collection of information.
iii. Enhance the quality, utility, and clarity of the information to be collected.
iv. Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated, electronic collection technologies or other forms of information technology.
The official records are electronic records.
Labor-Management Relations.
Administration for Native Americans, Administration for Children and Families, HHS.
Request for public comment.
The Administration for Children and Families (ACF) is requesting a 3-year extension of the form Administration for Native Americans (ANA) Project Outcome Assessment Survey (OMB #0970–0379, expiration 6/30/2022). There are minor changes and updates requested to the form.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Updates to this information collection address the Indian Community Economic Enhancement Act of 2020 (Pub. L. 116–261). It also addresses the flexibilities and assistance offered under COVID–19 recovery assistance.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, Agency, or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments (including recommendations) on the collection of information by April 29, 2022.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A–12M, 11601 Landsdown St., North Bethesda, MD 20852, 301–796–8867,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Respondents to this collection are sponsors of marketing applications that contain clinical data from studies covered by the regulations. These sponsors represent pharmaceutical, biologic, and medical device firms. Respondents are also clinical investigators who provide financial information to the sponsors of marketing applications.
In the
Table 1 shows information that is the basis of the estimated number of respondents in tables 2 through 4.
FDA estimates the burden of this collection of information as follows:
Under § 54.4(a) (21 CFR 54.4(a)), applicants submitting an application that relies on clinical studies must submit a complete list of clinical investigators who participated in a covered clinical study, and must either certify to the absence of certain financial arrangements with clinical investigators (Form FDA 3454) or, under § 54.4(a)(3), disclose to FDA the nature of those arrangements and the steps taken by the applicant or sponsor to minimize the potential for bias (Form FDA 3455).
FDA estimates that almost all applicants submit a certification statement under § 54.4(a)(1) and (2). Preparation of the statement using Form FDA 3454 should require no more than 1 hour per study. The number of respondents is based on the estimated number of affected applications.
When certification is not possible and disclosure is made using Form FDA 3455, the applicant must describe, under § 54.4(a)(3), the financial arrangements or interests and the steps that were taken to minimize the potential for bias in the affected study. As the applicant would be fully aware of those arrangements and the steps taken to address them, describing them will be straightforward. The Agency estimates that it will take about 5 hours to prepare this narrative. Based on our experience with this collection, FDA estimates that approximately 10 percent of the respondents with affected applications will submit disclosure statements.
Under § 54.6 (21 CFR 54.6), the sponsors of covered studies must maintain complete records of compensation agreements with any compensation paid to nonemployee clinical investigators, including information showing any financial interests held by the clinical investigator, for 2 years after the date of approval of the applications. Sponsors of covered studies maintain many records regarding clinical investigators, including protocol agreements and investigator résumés or curriculum vitae. FDA estimates than an average of 15 minutes will be required for each recordkeeper to add this record to the clinical investigators' file.
Under § 54.4(b), clinical investigators supply to the sponsor of a covered study financial information sufficient to allow the sponsor to submit complete and accurate certification or disclosure statements. Clinical investigators are accustomed to supplying such information when applying for research grants. Also, most people know the financial holdings of their immediate family, and records of such interests are generally accessible because they are needed for preparing tax records. For these reasons, FDA estimates that the
The burden for this information collection request has changed since the last OMB approval. Our estimated burden for the information collection reflects a 298 hour increase. We have adjusted our estimated burden for the information collection to reflect the number of submissions we received in the last few years. Additionally, for products regulated by the Center for Devices and Radiological Health, we now include De Novo requests as a type of application that may rely on clinical studies. Upon review, we have corrected an inadvertent omission regarding the number of BLAs and BLA efficacy supplements received by our Center for Drug Evaluation and Research and used, in part, as a basis for calculating the cumulative burden estimate. We have corrected that error here, as reflected in table 1.
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with of the Paperwork Reduction Act of 1995, HRSA has submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period. OMB may act on HRSA's ICR only after the 30 day comment period for this notice has closed.
Comments on this ICR should be received no later than April 29, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request a copy of the clearance requests submitted to OMB for review, email Samantha Miller, the acting HRSA Information Collection Clearance Officer at
When submitting comments or requesting information, please include the information request collection title for reference.
The FTCA Program has a web-based application system, the Electronic Handbooks. These electronic application forms decrease the time and effort required to complete the older, paper-based OMB approved FTCA application forms. The application includes: Contact Information; Section 1: Review of Risk Management Systems; Section 2: Quality Improvement/Quality Assurance; Section 3: Credentialing and Privileging; Section 4: Claims Management; and Section 5: Additional Information, Certification, and Signatures.
HRSA is proposing several changes to the Application for Health Center Program Award Recipients for Deemed PHS Employment with Liability Protections under the FTCA, to be used for health center deeming applications for calendar year 2022 and thereafter, to clarify questions posed and required documentation. Specifically, the Application includes the following proposed changes:
•
• Some questions were removed from Quality Improvement/Quality Assurance Section, as these questions are similar to information that is also collected in the Risk Management Section. This change is intended to reduce duplicative information collection.
• For the Credentialing and Privileging Section, in this cycle, the application will return to the previous process of submitting a Credentialing List with providers' credentialing and privileging information.
A 60-day notice published in the
HRSA specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Council on Alcohol Abuse and Alcoholism.
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 or other reasonable accommodations to view the meeting, should notify the Contact Person listed below in advance of the meeting. The open session will be videocast and can be accessed from the NIH Videocasting and Podcasting website (
A portion of this meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Paulette S. Gray, Ph.D., Director, Division of Extramural Activities, National Cancer Institute, National Institutes of Health, 9609 Medical Center Drive, Room 7W444, Bethesda, MD 20892, 240–276–6340,
Susan Weiss, Ph.D., Director, Division of Extramural Research, National Institute on Drug Abuse, National Institutes of Health, 6001 Executive Boulevard, NSC, Room 5274, Bethesda, MD 20892, 301–443–6487,
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Deafness and Other Communication Disorders Advisory Council.
The is a virtual meeting and will be open to the public as indicated below. The url link to this meeting is
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being processed less than 15 days prior to the meeting due to scheduling limitations.
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) invites the general public and other Federal agencies to comment upon this proposed revision of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until May 31, 2022.
All submissions received must include the OMB Control Number 1615–0047 in the body of the letter, the agency name and Docket ID USCIS–2006–0068. Submit comments via the Federal eRulemaking Portal website at
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, telephone number (240) 721–3000 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
You may access the information collection instrument with instructions or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
(7)
U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and
Comments are encouraged and will be accepted until April 29, 2022.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be submitted via the Federal eRulemaking Portal website at
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, Telephone number (240) 721–3000 (This is not a toll-free number; comments are not accepted via telephone message.). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
The information collection notice was previously published in the
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
(7)
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) invites the general public and other Federal agencies to comment upon this proposed revision of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until May 31, 2022.
All submissions received must include the OMB Control Number 1615–0008 in the body of the letter, the agency name and Docket ID USCIS–
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, telephone number (240) 721–3000 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
You may access the information collection instrument with instructions or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
(7)
U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting 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. The purpose of this notice is to allow an additional 30 days for public comments.
Comments are encouraged and will be accepted until April 29, 2022.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be submitted via the Federal eRulemaking Portal website at
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, Telephone number (240) 721–3000 (This is not a toll-free number; comments are not accepted via telephone message.). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
The information collection notice was previously published in the
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
(7)
April 6, 2022, 12:45 p.m.–2:00 p.m. ET.
Via Zoom.
Meeting of the IAF Board of Directors, open to the public, portion closed to the public.
Executive session closed to the public as provided for by 22 CFR 1004.4(b).
Aswathi Zachariah, General Counsel, (202) 683–7118.
For Dial-in Information Contact: Denetra McPherson, Paralegal, (202) 688–3054.
The Inter-American Foundation is holding this meeting under the Government in the Sunshine Act, 5 U.S.C. 552(b).
Bureau of Indian Affairs, Interior.
Notice.
This notice advises the public that the Department of the Interior (DOI) approved a Tribal Energy Development Organization (TEDO) Certification for Twenty-First Century Tribal Energy, Inc, which is a Tribally owned corporation of Red Lake Band of Chippewa Indians (Red Lake).
The certification takes effect on March 17, 2022.
Ms. Johnna Blackhair, Deputy Bureau Director, Office of Trust Services, Washington DC 20240, (202) 809–2069.
A TEDO Certification allows the Tribe to enter into a lease or business agreement with the TEDO under 25 U.S.C. 3504(a)(2) or a right-of-way with the TEDO under 25 U.S.C. 3504(b)(2)(B) without Secretarial review and without a TERA. Red Lake's TEDO is organized under the laws of the Tribe and subject to the Tribe's jurisdiction, laws, and authority. The majority of the interest in the TEDO is owned and controlled by the Tribe (or the Tribe and one or more other Tribes) the Tribal land of which is being developed. The TEDO's organizing
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Pala Band of Mission Indians Leasing Ordinance under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into business leases without further BIA approval.
BIA issued the approval on March 25, 2022.
Ms. Carla Clark, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal Leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the Tribal regulations for the Pala Band of Mission Indians.
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447–48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.” H. Rep. 112–427 at 6 (2012).
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Pala Band of Mission Indians.
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Pechanga Band of Indians Residential Leasing Ordinance under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into residential leases without further BIA approval.
BIA issued the approval on March 25, 2022.
Ms. Carla Clark, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal Leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the Tribal regulations for the Pechanga Band of Indians.
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447–48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.” H. Rep. 112–427 at 6 (2012).
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Pechanga Band of Indians.
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Karuk Tribe Residential, Agriculture, and Business Leasing Ordinance under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into residential, agriculture, and business leases without further BIA approval.
BIA issued the approval on March 25, 2022.
Ms. Carla Clark, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal Leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the Tribal regulations for the Karuk Tribe.
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447–48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds,
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Karuk Tribe.
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Northfork Rancheria of Mono Indians of California Business Site Leasing Ordinance under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into business leases without further BIA approval.
BIA issued the approval on March 25, 2022.
Ms. Carla Clark, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal Leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the Tribal regulations for the Northfork Rancheria of Mono Indians of California.
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72440, 72447–48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.” H. Rep. 112–427 at 6 (2012).
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Northfork Rancheria of Mono Indians of California.
Office of the Secretary, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Office of the Secretary will seek Office of Management and Budget (OMB) approval of an emergency clearance of a new information collection.
Interested persons are invited to submit comments on or before May 31, 2022.
Written comments and recommendations for the proposed emergency clearance of a new information collection should be sent to Departmental Information Collection Clearance Officer, U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240; or by email to
To request additional information about this ICR, contact William B. Lodder Jr., Team Leader, Environmental Cleanup and Liability Management Team, Office of Environmental Policy and Compliance (OEPC), U.S. Department of the Interior, 1849 C Street NW, Washington, DC 20240; by telephone at 202–208–6128; or by email to
In accordance with the Paperwork Reduction Act of 1995 (PRA, 44 U.S.C. 3501
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Interior will issue financial assistance through grant and cooperative agreement awards to state governments and Indian tribal governments under Assistance Listing (CFDA) program 15.018 Energy Community Revitalization Program (ECRP). The authority is the Infrastructure Investment and Jobs Act (Pub. L. 117–58), Title VI, Section 40601.
The program is separated into the following parts:
BIL Section 40601 stipulates the first deadline to implement the initial grants portion of the program as May 14, 2022. However, since that date is a Saturday, the program has set the deadline for applications to 11:59 p.m. EDT Friday, May 13, 2022. The BIL requires Interior to collect information necessary to ensure that grant funds authorized by this legislation are used in accordance with the BIL and Federal assistance requirements under 2 CFR 200. Information collected by Interior's Office of Environmental Policy and Compliance (OEPC) as part of the consolidated workplan is described below. Interior seeks OMB approval of an emergency clearance to collect this information to manage and monitor grant awards to comply with the BIL.
To implement grant funds authorized by the BIL, the OEPC proposes to collect the following information associated with the administration of grants related to “
• Consolidated Workplans—We ask for the following information as part of the consolidated workplan:
• Grant Applications—The OEPC proposes to collect the following additional elements from applicants:
• Amendments—For many budget and program plan revisions, 2 CFR 200 requires recipients submit revision requests to the Federal awarding agency in writing for prior approval. Interior reviews such requests received to determine the eligibility and allowability of new or revised activities and costs and approves certain items of cost.
• Reporting/Recordkeeping Requirements:
The frequency of performance reporting may vary between the different parts of this program. However, all recipients will be required to submit reports at least annually and no more frequently than quarterly. We may require interim reports more frequently than quarterly as a specific condition of award in unusual circumstances, for example where more frequent reporting is necessary for the effective monitoring of the Federal award or could significantly affect program outcomes.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bureau of Land Management, Interior.
Notice of intent.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) Billings Field Office, Billings, Montana, intends to prepare an amendment to the Billings Field Office Resource Management Plan (RMP) and an associated Environmental Assessment (EA). The EA will analyze a proposed change to the RMP's Management Decision Wild Horse (MD WH–7) with respect to managing genetic diversity in the Pryor Mountain Wild Horse herd. This notice initiates the EA scoping process for the RMP amendment to solicit public comments and identify issues and announces the opportunity for public review of the planning criteria.
In order to be included in the analysis, all comments must be received electronically or in writing no later than April 29, 2022. The BLM does not plan to hold any scoping meetings for this RMP amendment. We will provide additional opportunities for public participation as appropriate.
Comments may be submitted electronically through the BLM e-planning website at
Dave LeFevre, telephone 406–896–5349, or email
This document provides notice that the BLM Billings Field Office, Billings, MT, intends to amend the Billings Field Office RMP and prepare an associated EA, announces the proposed plan amendment scoping process, and seeks public input on issues and planning criteria. Planning criteria help define decision space and are based upon applicable laws, Director and State Director guidance, and the results of public and governmental participation (43 CFR 1610.4–2). The draft planning criteria considered in the development of the proposed amendment include:
(1) The proposed amendment will be completed in compliance with NEPA, FLPMA, the Wild Free-Roaming Horses and Burro Act, as amended, and the implementing regulations in 43 CFR 1700, BLM Wild Horses and Burros Management Handbook H–1700–1, and other applicable laws, regulations, and policy.
(2) The proposed amendment is limited to MD WH–7 and would not change any other existing planning decisions in the Billings Field Office RMP.
(3) The proposed amendment would only apply to lands and resources managed by the BLM as described in the 2015 Billings Field Office RMP; it would not change management direction for other agencies.
(4) Decisions are compatible with existing plans and policies of adjacent local, State, Federal, and Tribal agencies, so long as the decisions are consistent with the purposes, policies, and programs of Federal law and regulations applicable to public lands.
The Pryor Mountain Wild Horse Range is located in the Pryor Mountains in southeastern Carbon County, Montana, and northern Big Horn County, Wyoming, and encompasses approximately 38,000 acres of land.
In 2009, the BLM approved the Pryor Mountain Wild Horse Range/Territory Herd Management Area Plan (HMAP) that identified management objectives for the Pryor Mountain wild horses and horse range. The 2009 HMAP managed the Pryor Mountain wild horses for a
In 2015, the BLM approved a new RMP for the Billings Field Office. That RMP at MD WH–2 provides direction for the BLM to “
In the 2015 RMP, it is evident that the intent of MD WH–7 was to limit the loss of genetic diversity, consistent with Goal WH–2 (“Maintain a wild horse herd that exhibits a diverse age structure, genetic diversity, and any characteristics unique to the Pryor horses.”). However, maximizing genetic diversity at the expense of ecosystem sustainability is not a management goal or directive for the herd.
An interpretation that every possible crossing of any given mare and any given stallion should leave a surviving foal (
Other impracticalities exist as well. The BLM cannot cause all patrilineal or matrilineal lines to be propagated. When considering patrilineal lines, not all stallions get to reproduce; breeding is often limited to the band stallion, and some horses may forever remain a bachelor stallion. There are also practical matters related to the well-being of animals that are removed from the wild. Wild horse adoption programs tend to place animals into homes more readily with younger horses as they are more adoptable and transition more readily to domestic life compared to an older horse. However, when young horses are gathered and removed from the range, many of them will not have reached maturity and produced an offspring.
The BLM proposes to amend MD WH–7 to make it consistent with RMP Goal WH2 to maintain genetic diversity and to align with management guidance in the BLM Wild Horse and Burro Handbook H–4700–1 for maintaining desirable genetic diversity (avoiding inbreeding depression). Specifically, the BLM proposes to amend the RMP to modify MD WH–7 as stated below:
“MD WH–7 (Proposed Amendment): Maintain desirable levels of genetic diversity, as measured by Observed Heterozygosity (Ho). Observed heterozygosity is a measure of how much diversity is found, on average, within individual animals in the Herd Management Area (HMA). If Ho drops below thresholds identified in the BLM Wild Horse and Burro Handbook H–4700–1, then BLM would take one or any combination of the following actions to reduce the possible risks associated with inbreeding depression:
(1) Maximize the number of fertile, breeding age wild horses (6–10 years) within the herd;
(2) adjust the sex ratio in favor of males (but with not more than approximately 60 percent males); or
(3) introduce mares or stallions from other wild horse HMAs. Prioritize introductions from herds with characteristics similar to the Pryor Mountain horses, such as the Sulfur herd in Utah, the Cerbat Mountain herd in Arizona, or others.”
BLM Handbook H–4700–1 guidance notes that herds with observed heterozygosity values that are one standard deviation below the mean are considered at critical risk. Hair samples last collected from the Pryor Mountain herd in February 2013 indicated that values for observed heterozygosity were above the mean for feral horse herds at that time. The BLM would continue to collect genetic samples to monitor genetic diversity. The results of current and future genetic monitoring efforts, along with previous monitoring results, would indicate if loss of genetic diversity is a concern and if any of the management actions as noted in the proposed amendment would need to be taken.
Maintaining desirable levels of genetic diversity would also assure a variety of colors are maintained in the Pryor Mountain horse herd. Pryor Mountain horses exhibit a variety of colors, with common colors including dun, grulla, bay, black, and roan. Less common colors that appear in the herd include red or apricot dun, chestnut, sorrel, palomino, and buckskin. Color is a phenotypic representation of dominant or recessive genes passed through generations. A horse that is a rare color may not produce offspring that are also a rare color. BLM is proposing to revise MD WH–7 to address genetic diversity in a manner that is consistent with the Wild Horse and Burro Handbook, but consideration of color would be addressed through MD WH–2 (characteristics unique to the Pryors) and Selective Removal Criteria.
Supplemental information on the proposed plan amendment is available on BLM's e-Planning website at the project link noted earlier in the
You may submit comments electronically or in writing on the proposed amendment to the BLM as shown in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The BLM will work collaboratively with interested parties to identify the management decisions that are best suited to local, regional, and national needs and concerns.
Bureau of Land Management, Interior.
Notice of intent.
The Bureau of Land Management (BLM) is implementing a future expanded amenity fee program for camping at Rabbit Valley campgrounds, located within McInnis Canyons National Conservation Area (NCA) in Mesa County, Colorado. The fee program will allow the BLM to meet increasing demand for camping activities, protect resources, prevent further deterioration of the recreation setting, enforce existing rules and regulations, and provide for enhanced information and educational opportunities.
Comments on the proposed fee changes must be received or postmarked by June 28, 2022 and must include the commenter's legible full name and address. Starting on Friday, September 30, 2022, the BLM will have the option to initiate fee collection at Rabbit Valley campgrounds for overnight visitation, unless the BLM publishes a
Please send comments to the BLM Grand Junction Field Office at 2815 H Road, Grand Junction, CO 81506 or by email at
Collin Ewing, NCA Manager, email:
Under the Federal Lands Recreation Enhancement Act (FLREA) and BLM policy, the BLM may collect fees in conjunction with Recreation Use Permits to manage visitor use, protect natural and cultural resources, achieve the goals and objectives of the applicable management plan, and authorize specific types of recreational activities. Under Section 2(g) of the FLREA, certain campgrounds qualify as sites where visitors can be charged an “Expanded Amenity Recreation Fee.” Visitors wishing to use the expanded amenities can purchase a recreation use permit as described in the FLREA implementing regulations at 43 CFR part 2930. Pursuant to FLREA and the regulations at 43 CFR subpart 2933, the BLM may charge fees for overnight camping and group-use reservations where specific amenities and services are provided.
The BLM is implementing fee collection in the Rabbit Valley campgrounds for overnight camping. Rabbit Valley is a popular recreation destination for off-highway vehicle riding, mountain biking, horseback riding, and hiking, located off Interstate 70, 2 miles east of the Colorado/Utah border. In accordance with a July 2019 decision, the BLM will be constructing new campgrounds in the Rabbit Valley area. Most campsites in the Rabbit Valley campgrounds will require a fee of $20 per night, except for group campsites, which will range from $20 to $50 per night, depending on the number of vehicles ($20 per night for the first two vehicles, additional vehicles are $10 per night up to a maximum of five vehicles). The BLM will identify and post specific visitor fees at each campground. Visitors holding an America the Beautiful—National Parks and Federal Recreational Lands “Senior Annual Pass,” “Senior Lifetime Pass,” or “Access Pass” would be entitled to a 50 percent discount on expanded amenity fees. Veterans and “Annual Interagency Pass,” “Fourth Grade Pass,” and “Gold Star Families Parks Pass” holders are not entitled to this discount.
The BLM is also implementing a temporary, fee-free Individual Special Recreation Permit (ISRP) for camping in both undeveloped and developed designated campsites. Within the footprint of planned future campground development, undeveloped campsites for ISRPs will be designated with a sign. Dispersed camping outside of developed and undeveloped designated campsites will be prohibited. The BLM will phase out the ISRP as the new campgrounds in the Rabbit Valley are constructed.
In response to increasing visitor demand, the BLM issued a July 2019 Decision Record approving the development of additional campsites in the Rabbit Valley area as described in an Environmental Assessment (EA) (DOI–BLM–CO–S081–2018–0005–EA), and prepared a Business Plan for the project. The proposed action described in the EA, and approved in the Decision Record, included the option to charge a fee for overnight camping within the Rabbit Valley project area. The EA explained that the fee program would be developed through a separate process, which would include public involvement and consultation with the BLM Colorado Southwest District Resource Advisory Council (RAC). The BLM's public outreach process and analysis of the fee program are detailed in the Business Plan.
The Business Plan outlines the agency management direction, the need for fee collection, and how the BLM intends to use the fees to improve and maintain the amenities in the Rabbit Valley area. Information about the use of the fee revenues will be posted at one or more kiosks within the fee area annually. As discussed in the Business Plan, the camping fees are consistent with other established fee sites in the region, including other BLM-administered sites and those managed by the U.S. Department of the Interior—National Park Service, U.S. Department of Agriculture—Forest Service, and the State of Colorado.
In accordance with the FLREA and the Council of Environmental Quality regulations implementing the National Environmental Policy Act, the BLM has notified and involved the public throughout this process. The BLM released its draft Business Plan and the Proposed Action for public scoping from June 24 through July 25, 2018. The BLM presented the proposed project and the results of this scoping to the BLM Colorado Southwest District RAC on March 8, 2019. The RAC passed a resolution to support fees in existing and new campgrounds in Rabbit Valley, with a separate resolution recommending that the BLM release the preliminary EA and an updated Business Plan for additional public comment. The public comment period ran from April 16 through May 17, 2019.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM), Las Vegas Field Office, has examined approximately 2.5 acres of public land in the Las Vegas Valley, Clark County, Nevada, and found the lands suitable for classification under the provisions of the Recreation and Public Purposes (R&PP) Act, as amended. Clark County proposes to use the land for a new community fire station to help meet future expanding public-safety needs in the southwestern part of the Las Vegas Valley.
Interested parties may submit written comments until May 16, 2022.
Mail written comments to the BLM Las Vegas Field Office, Assistant Field Manager, 4701 North Torrey Pines Drive, Las Vegas, NV 89130; or fax to 775–515–5010.
Jamie Moeini at the above address; by telephone at 702–515–5129; or by email at
The parcel is located south of Raven Avenue and east of Rosanna Street in southwest Las Vegas and is legally described as:
The area described contains 2.5 acres, according to the official plats of the surveys of said lands on file with the BLM.
Clark County proposes to develop the above-described land as a fire station consisting of a new 10,482-square-foot building with an Emergency Medical Service office, Battalion Chief's office, Captain's office, dining room, kitchen, “day room,” fitness room, outdoor BBQ area, alarm center, laundry area, turnout room, 12-person dorm, and a three large-vehicle apparatus bay with mechanical yard. The building will be constructed of insulated concrete masonry units and steel structure, with a decorative masonry veneer and steel canopy at the main entrance. There will be paved parking lots at the rear of the building consisting of 11 spaces for the public and 25 spaces for staff. Typical desert landscaping will be included throughout the site. Additional detailed information pertaining to this publication and plan of development for the project is available for review in case file N–99569 at the address as shown in the
The land identified is not needed for any Federal purpose and it would be in the public's interest to transfer the parcel under the R&PP Act. The lease and subsequent conveyance are consistent with the 1998 BLM Las Vegas Resource Management Plan.
The lease and subsequent conveyance, when issued, will be subject to the provisions of the R&PP Act and applicable regulations of the Secretary of the Interior, and will be made subject to and/or the following reservations:
1. A right-of-way thereon for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945);
2. All minerals shall be reserved to the United States, together with the right to prospect for, mine, and remove such deposits for the same under applicable law and such regulations as the Secretary of the Interior may prescribe;
3. All other valid existing rights;
4. Terms or conditions required by law (including, but not limited to, any terms or conditions required by 43 CFR 2741.4) or as deemed necessary and appropriate by the Authorized Officer; and
5. Indemnification protecting the Untied States from claims arising out of the lessee's/patentee's use, occupancy, or operations on the leased/patented lands.
Upon publication of this notice in the
Before including your address, phone number, email, address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Only written comments submitted to the Assistant Field Manager, BLM Las Vegas Field Office, will be considered properly filed. Any adverse comments on the classification will be reviewed as protests, by the BLM Nevada State Director, who may sustain, vacate, or modify this realty action.
In the absence of any adverse comments, the decision will take effect on May 31, 2022.
Bureau of Land Management, Interior.
Notice of realty action.
Pinal County, AZ, filed an application with the Bureau of Land Management (BLM) to develop three parcels of BLM-managed land as part of a regional park that will help meet expanding recreational needs in the area near Maricopa, AZ. The BLM, Lower Sonoran Field Office, examined the three parcels consisting of approximately 497 acres of public land and determined that the parcels are suitable for classification under the provisions of the Recreation and Public Purposes (R&PP) Act, as amended. The R&PP Act allows local governments to lease, develop, and subsequently acquire public lands for recreation and other public purposes if compliant with local government and BLM land use planning. The R&PP project is consistent with the Federal Land Policy and Management Act, as amended, and associated BLM regulations and policies.
Interested parties may submit written comments regarding the classification and decision to issue a lease on or before May 16, 2022. In the absence of adverse comments, the decision to lease the land will become effective no less than 60 days after the date of publication in the
Mail written comments to the BLM Lower Sonoran Field Office (LSFO), Attn: Ryan Randell, Realty Specialist, 21605 North 7th Avenue, Phoenix, Arizona 85027 or fax to (623) 580–5580. Additional information, including the plan of development and environmental assessment, is available for public review at the LSFO, or online at:
Ryan Randell, Realty Specialist, telephone: (623) 580–5533, email:
The three parcels are located within the Palo Verde Mountains, west of the City of Maricopa and south of Arizona State Route 238, and are legally described as:
The areas described aggregate 497 acres, more or less.
Plans for the R&PP Act project consist of new trailheads and staging areas, restrooms, shaded structures, host campsites, a 39-space campground with facilities, an archery range, and a day use off-highway vehicle area with parking. The project is consistent with the objectives of the BLM Lower Sonoran Resource Management Plan dated September 19, 2012, and was analyzed consistent with the National Environmental Policy Act (NEPA). Additional information, including the plan of development and environmental assessment, is available for public review at the LSFO (see
The lease document, if issued, will be subject to the provisions of the R&PP Act and the following terms and conditions:
1. Subject to valid existing rights.
2. An appropriate indemnification clause protecting the United States from claims arising out of the lessee's use, occupancy, or occupations on the leased lands.
The lands as described above have been found suitable for leasing under the R&PP Act. Upon publication of this notice in the
Interested parties may submit comments involving the suitability of the land for development of a regional park in Pinal County and whether the land is physically suited for the proposal, whether the use will maximize the future use or uses of the land, whether the use is consistent with local planning and zoning, or whether the proposed use is consistent with State and Federal programs. Comments may also include concerns over the specific use proposed in the application and whether the BLM followed proper administrative procedures in reaching the decision to lease the lands under the R&PP Act. Only written comments submitted to the BLM Lower Sonoran Field Office will be considered properly filed.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Any adverse comments will be considered protests and will be reviewed by the BLM Arizona State Director, who may sustain, vacate, or modify this realty action.
National Park Service, Interior.
Notice; correction.
The National Park Service published a document in the
April Brooks, 202–354–1808.
In the
Fort Ancient in Warren County and the Octagon Earthworks and Great Circle Earthworks in Licking County.
National Park Service, Interior.
Notice.
The Michigan State Historic Preservation Office (Michigan SHPO) 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 a 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 Michigan SHPO. 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 Michigan SHPO at the address in this notice by April 29, 2022.
Michael Hambacher, Staff Archeologist, State Historic Preservation Office, Michigan Economic Development Corporation Building, 300 N Washington Square, Lansing, MI 48913, telephone (517) 243–9513, 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 Michigan State Historic Preservation Office, Lansing, MI. The human remains and associated funerary objects were removed from the White Rapids site (20ME3), Menominee County, MI.
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 and associated funerary objects was made by the Michigan SHPO professional staff in consultation with representatives of the Chippewa Cree Indians of the Rocky Boy's Reservation, Montana (previously listed as Chippewa-Cree Indians of the Rocky Boy's Reservation, Montana); Hannahville Indian Community, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Vieux Desert Band of Lake Superior Chippewa Indians of Michigan; Little Shell Tribe of Chippewa Indians of Montana; Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Menominee Indian Tribe of Wisconsin; Minnesota Chippewa Tribe, Minnesota (Mille Lacs Band); Nottawaseppi Huron Band of the Potawatomi, Michigan (previously listed as Huron Potawatomi, Inc.); and the Pokagon Band of Potawatomi Indians, Michigan and Indiana (hereafter referred to as “The Consulted Tribes”).
The Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin; Citizen Potawatomi Nation, Oklahoma; Forest County Potawatomi Community, Wisconsin; Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Minnesota Chippewa Tribe, Minnesota (Bois Forte Band (Nett Lake); Fond du Lac Band; Grand Portage Band; Leech Lake Band; White Earth Band); Prairie Band Potawatomi Nation (previously listed as Prairie Band of Potawatomi Nation, Kansas); Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Red Lake Band of Chippewa Indians, Minnesota; Sokaogon Chippewa Community, Wisconsin; St. Croix Chippewa Indians of Wisconsin; and the Turtle Mountain Band of Chippewa Indians of North Dakota (hereafter referred to as “The Invited Tribes”) were invited to consult, but did not participate.
In 1956, human remains representing, at minimum, nine individuals were removed from the White Rapids site (20ME3), in Menominee County, MI, during an excavation conducted by an archeologist from the University of Michigan Museum of Anthropological Archaeology. The site consists of a pair of mounds located near the Menominee River in the Menominee State Forest. Human remains and associated funerary objects were removed from Mound 2, which contained three separate burial episodes designated as Features 1, 2, and 3. Feature 1 is described as an extended adult female burial. Feature 2 is described as containing charred human remains from several long bones representing multiple individuals. Feature 3 is described as fragmentary human remains from a disturbed burial. The human remains removed from the site are one young adult 19–30 years old, female; one adult, female; one child 9–10 years old; one older adult 40+ years old, indeterminate sex; one cremated adult, indeterminate sex; one older adult 40+ years old, possible male; one adult, possible female; one cremated adult, possible male; and one cremated adult 35–49 years old, female. The burials date to the Late Woodland Period (500–1400 A.D.) based on burial treatment. No known individuals were identified. The six associated funerary objects are one lot of charred wood; one lot of charcoal, soil, and unworked pebbles; one lot of ashes; one lot of charcoal; one lot of fire-cracked rock; and one lot of grit-tempered and decorated ceramic sherd.
The human remains have been determined to be Native American based on cranial morphology, accession documentation, and archeological context. A relationship of shared group identity can be reasonably traced between the Native American human remains from this site and the Menominee Indian Tribe of Wisconsin, based on the site's location within the lands traditionally occupied by the Menominee. Moreover, according to oral tradition and historical accounts, the
Officials of the Michigan State Historic Preservation Office have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of nine individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the six 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 Menominee Indian Tribe of Wisconsin.
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 object should submit a written request with information in support of the request to Michael Hambacher, Staff Archeologist, State Historic Preservation Office, Michigan Economic Development Corporation Building, 300 N Washington Square, Lansing, MI 48913, telephone (517) 243–9513, email
The Michigan State Historic Preservation Office is responsible for notifying The Consulted Tribes and The Invited Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, Bureau of Indian Affairs 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 Bureau of Indian Affairs. 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 funerary objects should submit a written request with information in support of the request to the Bureau of Indian Affairs at the address in this notice by April 29, 2022.
Dr. B.J. Howerton, Bureau of Indian Affairs, 1001 Indian School Road NW, Albuquerque, NM 87114, 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. The human remains and associated funerary objects were removed from Coconino County, AZ.
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 the Bureau of Indian Affairs professional staff in consultation with representatives of the Navajo Nation, Arizona, New Mexico, & Utah.
On May 17, 1971, human remains representing, at minimum, one individual were removed from a historic Navajo site (NA11021) in Coconino County, AZ. The human remains were removed from a burial during authorized excavations prior to construction of a railroad between Black Mesa and Page, AZ, that crossed tribal trust lands of the Navajo Nation, Arizona. New Mexico, & Utah. The human remains and associated funerary objects were first placed in the custody of the Museum of Northern Arizona in Flagstaff, AZ, in 1971. Subsequently, they were placed in the custody of the Navajo Nation Museum in Window Rock, AZ. In 2019, custody of the remains and funerary objects reverted to the Museum of Northern Arizona. The human remains belong to an adult female. No known individual was identified. The two associated funerary objects are one metal spoon and one metal can with a lid.
The burial was within a brush shade structure (
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 one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the two objects described in this notice are reasonably believed to have been placed with or near individual human
• 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 Navajo Nation, Arizona, New Mexico, & Utah.
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. B.J. Howerton, Bureau of Indian Affairs, 1001 Indian School Road NW, Albuquerque, NM 87114, telephone (505) 563–3013, email
The Bureau of Indian Affair is responsible for notifying the Navajo Nation, Arizona, New Mexico, & Utah that this notice has been published.
National Park Service, Interior.
Notice.
The Brooklyn Children's 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 a cultural affiliation between the human remains 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 should submit a written request to the Brooklyn Children's Museum. If no additional requestors come forward, transfer of control of the human remains 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 should submit a written request with information in support of the request to the Brooklyn Children's Museum at the address in this notice by April 29, 2022.
Kate Mirand Calleri, Brooklyn Children's Museum, 145 Brooklyn Avenue, Brooklyn, NY 11213, telephone (718) 735–4400, 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 under the control of the Brooklyn Children's Museum, Brooklyn, NY. The human remains were removed from “Southern NY,” most likely from within Bronx County, NY.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Brooklyn Children's Museum professional staff in consultation with representatives of the Delaware Nation, Oklahoma; Delaware Tribe of Indians; and the Stockbridge Munsee Community, Wisconsin (hereafter referred to as “The Tribes”).
In the early-to-mid 20th century, human remains representing, at minimum, three individuals were removed from an unknown location in the Bronx, NY. The three individuals, represented by three skulls, were donated to the Museum by Dr. Theodore Kazimiroff. No known individuals were identified. No associated funerary objects are present.
Brooklyn Children's Museum has made the geographic determination that these human remains were removed from Bronx County based on the “Southern New York” label in the original accessioning records, as well as from the extensive history of Kazimiroff's excavations within New York City limits, particularly in Bronx County, NY. Starting in the mid-1900s, records show that he excavated over 45,000 objects in New York City, the vast majority of which he claimed were Native American. Kazimiroff was the official Bronx County historian from 1953 to 1980, as well as President of Kings Bridge Historical Society and the founder of the Bronx Historical Society. In his writings, he documents an “Algonquin village” burial ground that he excavated in the Bronx. He also writes of his extensive excavations in the Bronx where the New York Botanical Gardens are today located. Kazimiroff's presence in Bronx County was so great that, from 1980 to 2011, the northern extension of Southern Boulevard between East Fordham Road and Allerton Avenue was named “Dr. Theodore Kazimiroff Boulevard.” To this day, he is still associated with Bronx County; Pelham Bay Park contains the “Kazimiroff Nature Trail.”
Officials of the Brooklyn Children's Museum have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of three individuals of Native American ancestry.
• 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 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 should submit a written request with information in support of the request to Kate Mirand Calleri, Brooklyn Children's Museum, 145 Brooklyn Avenue, Brooklyn, NY 11213, telephone (718) 735–4400, email
The Brooklyn Children Museum is responsible for notifying The Tribes that this notice has been published.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission (“Commission”) has determined to grant respondents' petition for reconsideration and respondents' motion for leave to submit a petition for reconsideration out of time, and to issue a corrected Commission opinion.
Ronald A. Traud, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205–3427. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
The Commission had instituted this investigation on September 8, 2020, based on a complaint filed on behalf of General Electric Company of Boston, Massachusetts (“GE”). 85 FR 55492–93 (Sept. 8, 2020). The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain variable speed wind turbine generators and components thereof by reason of infringement of one or more claims of U.S. Patent Nos. 6,921,985 (“the '985 patent”) and 7,629,705 (“the '705 patent”).
On September 10, 2021, the ALJ issued a final initial determination (“final ID”) finding a violation of section 337 with respect to the '985 patent and finding no violation with respect to the '705 patent. 86 FR 64526 (Nov. 18, 2021). On November 12, 2021, the Commission determined to review the final ID in part.
On January 18, 2022, the Commission made its final determination in this investigation, finding a violation of section 337 by SGRE as to certain claims of the '985 patent and issuing a limited exclusion order and cease and desist orders to SGRE. 87 FR 3586 (Jan. 24, 2022). The Commission issued a Commission Opinion accompanying its final determination.
On February 7, 2022, SGRE filed a petition for reconsideration and a motion for leave to submit a petition for reconsideration out of time. The petition requests that the Commission correct its January 18, 2022 Opinion in this investigation to correct a technical inaccuracy. GE did not file a response to either the motion or petition.
The Commission has determined to grant SGRE's petition for reconsideration and SGRE's motion for leave to submit a petition for reconsideration out of time, and to issue a corrected Commission opinion.
The Commission vote for this determination took place on March 25, 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).
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Office of Workers' Compensation Programs (OWCP)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before April 29, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) if the information will be processed and used in a timely manner; (3) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Mara Blumenthal by telephone at 202–693–8538, or by email at
The Longshore and Harbor Workers' Compensation Act (LHWCA), at 33 U.S.C. 919(e), requires that any order rejecting or making an LHWCA award (the compensation order) be filed in the appropriate district director's office of the Office of Workers' Compensation Programs (OWCP), and that copies be sent by registered or certified mail to the claimant and the employer. The
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Notice; request for comments.
Office of Labor-Management Standards, Labor.
In compliance with the Paperwork Reduction Act of 1995 (PRA), the DOL is soliciting public comments regarding the proposed extension of this Office of Labor-Management Standards (OLMS)-sponsored information collection for the authority to continue the information collection request (ICR) titled, “Notice of Employee Rights under National Labor Relations Act Complaint Process,” currently approved under OMB Control Number 1245–0004.
Consideration will be given to all written comments received by May 31, 2022.
A copy of this ICR with applicable supporting documentation, including a description of the likely respondents, proposed frequency of response, and estimated total burden, may be obtained free by contacting Karen Torre at (202) 693–0123 (this is not a toll-free number), or (800) 877–8339 (TTY/TDD).
Karen Torre, Chief of the Division of Interpretations and Regulations, Office of Labor-Management Standards, U.S. Department of Labor, 200 Constitution Avenue NW, Room N–5609, Washington, DC 20210, by telephone at (202) 693–0123 (this is not a toll-free number), (800) 877–8339 (TTY/TDD), or by email at
President Barack Obama signed Executive Order 13496 (E.O. 13496) on January 30, 2009, requiring certain Government contractors and subcontractors to post notices informing their employees of their rights as employees under Federal labor laws. The Order also provides the text of contractual provisions that Federal Government contracting departments and agencies must include in every Government contract, except for collective bargaining agreements and contracts for purchases under the Simplified Acquisition Threshold. OLMS administers the enforcement provisions of Executive Order 13496, while the compliance evaluation and investigatory provisions are handled by the Department's Office of Federal Contract Compliance Programs (OFCCP), pursuant to the Order's implementing regulatory provisions (29 CFR part 471). Complaints can be filed with both agencies.
The Department seeks extension of the current approval to collect this information. An extension is necessary because if this information collection is not conducted, E.O. 13496 could not be enforced through the complaint procedure.
E.O. 13496 advances the Administration's goal of promoting economy and efficiency of Federal government procurement by ensuring that workers employed in the private sector as a result of Federal government contracts are informed of their rights to engage in union activity and collective bargaining. Knowledge of such basic statutory rights promotes stable labor-management relations, thus reducing costs to the Federal government.
The contractual provisions require contractors and subcontractors to post a notice, created by the Secretary of Labor, informing employees of their rights under the National Labor Relations Act. The notice also provides a statement of the policy of the United States to encourage collective bargaining, as well as a list of activities that are illegal under the Act. The notice concludes with a general description of the remedies to which employees may be entitled if these rights have been violated and contact information for further information about those rights and remedies, as well as enforcement procedures.
The clause also requires contractors to include the same clause in their
The regulatory provisions implementing E.O. 13496 (29 CFR part 471) include the language of the required notices, and they explain posting and contractual requirements, the complaint process, the investigatory process, and sanctions, penalties, and remedies that may be imposed if the contractor or subcontractor fails to comply with its obligations under the Order. Specifically, 29 CFR part 471.11(c) sets forth the procedures that the Department must use when accepting written complaints alleging that a contractor doing business with the Federal government has failed to post the notice required by the Executive Order.
The Department continues to estimate a total of 10 respondents with an equal amount of responses. Since the ICR was last approved in 2019, the Department has received 1 complaint. The Department maintains the estimate of 10 complaints for purposes of this renewal request. The Department continues to estimate that it will take an employee 1.28 hours per complaint, for a total of 12.8, rounded to 13 hours.
Additionally, employees will incur costs of $0.62 per complaint in capital/start-up costs ($0.58 for standard-sized, rectangular envelopes postage in January 2022
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
The Marine Mammal Commission and its Committee of Scientific Advisors on Marine Mammals will hold a public meeting on Tuesday, 12 April 2022, from 2:00 p.m. to 5:00 p.m. (Eastern Daylight Time).
This meeting will be conducted by remote means.
This meeting will be held in accordance with the provisions of the Government in the Sunshine Act (5 U.S.C. 552b) and the Federal Advisory Committee Act (5 U.S.C. App. I) and will be open to the public. Public participation will be allowed as time permits and as determined to be desirable by the Chairman. The Commission will livestream the meeting via a Zoom webinar. For further information and to register for the webinar, go to the Commission's website at
The Commission and Committee of Scientific Advisors will meet to consider actions for reducing vessel strike of large cetaceans. Specifically, meeting participants will review Federal vessel-routing and speed-reduction programs, their elements, and effectiveness, identify locations where additional measures are or may be needed, and consider recommendations for next steps. The agenda for the meeting is posted on the Commission's website at
Brady O'Donnell or Hannah Wellman, Marine Mammal Commission, 4340 East West Highway, Room 700, Bethesda, MD 20814; (301) 504–0087; email:
Millennium Challenge Corporation.
Notice.
In accordance with the requirements of the Federal Advisory Committee Act, the Millennium Challenge Corporation (MCC) Advisory Council was established as a discretionary advisory committee on July 14, 2016. Its charter was renewed for a second term on July 11, 2018 and third term on July 8, 2020. The MCC Advisory Council serves MCC solely in an advisory capacity and provides insight regarding innovations in infrastructure, technology and sustainability; perceived risks and opportunities in MCC partner countries; new financing mechanisms for developing country contexts; and shared value approaches. The MCC Advisory Council provides a platform for systematic engagement with the private sector and other external stakeholders and contributes to MCC's mission—to reduce poverty through sustainable, economic growth.
Thursday, April 21, 2022 from 10:00 a.m.–12:00 p.m. EDT.
The meeting will be held in-person and via conference call.
Contact Bahgi Berhane, 202–521–3600, or email
National Center for Science and Engineering Statistics, National Science Foundation.
Notice and request for comments.
The National Center for Science and Engineering Statistics (NCSES) within the National Science Foundation (NSF) is announcing plans to request renewal of the Higher Education Research and Development Survey. In accordance with the requirements of the Paperwork Reduction Act of 1995, we are providing opportunity for public comment on this action. After obtaining and considering public comment, NSF will prepare the submission requesting that OMB approve clearance of this collection for three years.
Written comments on this notice must be received by May 31, 2022 to be assured consideration. Comments received after that date will be considered to the extent practicable. Send comments to address below.
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, W18253, Alexandria, Virginia 22314; telephone (703) 292–7556; or send email to
The Higher Education Research and Development (R&D) Survey (formerly known as the Survey of R&D Expenditures at Universities and Colleges) originated in fiscal year (FY) 1954 and has been conducted annually since FY 1972. The survey represents one facet of the research and development component of NCSES's statistical program, which also includes R&D surveys on the business, federal government, higher education, state government, and nonprofit sectors.
Data are published in NSF's annual publication series
The average burden estimate is 64 hours for the approximately 650 institutions reporting at least $1 million in R&D expenditures, 8 hours for the approximately 275 institutions reporting less than $1 million, 1 hour for the approximately 125 institutions in the population screener, and 11 hours for the 43 organizations completing the FFRDC survey. The total calculated burden across all forms is 44,398 hours.
The National Science Board hereby gives notice of the scheduling of a teleconference of the Committee on Oversight for the transaction of National Science Board business pursuant to the NSF Act and the Government in the Sunshine Act.
Monday, April 4, 2022, from 2:00–3:00 p.m. EDT.
This meeting will be held by teleconference organized through the National Science Foundation.
Open.
The agenda is: Committee Chair's Opening Remarks; Discussion of Vision for Facilitating the Broader Impacts of the Cutting-Edge Science and Engineering Funded by NSF.
Point of contact for this meeting is: Chris Blair,
Meeting information is available from the NSB website at
In accordance with the Federal Advisory Committee Act (Pub. L. 92–463, as amended), the National Science Foundation (NSF) announces the following meeting:
This meeting will be held virtually. The final meeting agenda and instructions to register will be posted on the ACCI website:
Nuclear Regulatory Commission.
Exemption; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an exemption in response to a January 14, 2022, request from Arizona Public Service Company (the licensee), as supplemented by letter dated February 22, 2022. The licensee requested an exemption from NRC regulations to remove the diverse auxiliary feedwater actuation system using the risk-informed process for evaluations for Palo Verde Nuclear Generating Station, Units 1, 2, and 3.
The exemption was issued on March 23, 2022.
Please refer to Docket ID NRC–2022–0058 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this document using any of the following methods:
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Siva P. Lingam, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–1564, email:
The text of the exemption is attached.
For the Nuclear Regulatory Commission.
Arizona Public Service Company (APS, the licensee) is the holder of Renewed Facility Operating License Nos. NPF–41, NPF–51, and NPF–74, which authorize operation of Palo Verde Nuclear Generating Station, Units 1, 2, and 3 (Palo Verde), respectively. The licenses provide, among other things, that the facility is subject to all rules, regulations, and orders of the U.S. Nuclear Regulatory Commission (NRC) now or hereafter in effect. The facility consists of pressurized-water reactors (PWRs) located in Maricopa County, Arizona.
By application dated January 14, 2022, as supplemented by letter dated February 22, 2022 (Agencywide Documents Access and Management System (ADAMS) Accession Nos. ML22014A415 and ML22053A212, respectively), APS, pursuant to Title 10 of the
The regulation in 10 CFR 50.62(c)(1) states:
Each pressurized water reactor must have equipment from sensor output to final actuation device, that is diverse from the reactor trip system, to automatically initiate the auxiliary (or emergency) feedwater system and initiate a turbine trip under conditions indicative of an ATWS. This equipment must be designed to perform its function in a reliable manner and be independent (from sensor output to the final actuation device) from the existing reactor trip system.
The regulation in 10 CFR 50.62(c)(1) specifically includes the requirement to provide equipment that is diverse from the reactor trip system to automatically initiate the auxiliary (or emergency) feedwater system under the conditions of an ATWS. The Palo Verde DAFAS fulfills this requirement. Therefore, the proposed removal of the DAFAS from the Palo Verde licensing basis requires an exemption from this section of the regulations.
Pursuant to 10 CFR 50.12, the NRC may, upon application by any interested person or upon its own initiative, grant exemptions from requirements of 10 CFR part 50 when: (1) The exemptions are authorized by law, will not present an undue risk to the public health and safety, and are consistent with the common defense and security, and (2) special circumstances, as defined in 10 CFR 50.12(a)(2), are present. The licensee's submittal identifies in particular that the special circumstance associated with this exemption request is that continuing to maintain the DAFAS in the licensing basis for Palo Verde Units 1, 2, and 3 represents an undue hardship in accordance with 10 CFR 50.12(a)(2)(iii) due to DAFAS' obsolescence.
The NRC has the authority under 10 CFR 50.12 to grant exemptions from the requirements of 10 CFR part 50 upon demonstration of proper justification. The licensee has requested a partial exemption to the requirement in 10 CFR 50.62(c)(1) to provide equipment to automatically initiate the auxiliary (or emergency) feedwater system under ATWS conditions that is diverse from the reactor trip system. The licensee will continue to meet all other requirements in 10 CFR 50.62(c)(1). As discussed below, the NRC staff determined that special circumstances exist, which support granting the proposed exemption. Furthermore, granting the exemption would not result in a violation of the Atomic Energy Act of 1954, as amended, or the NRC's regulations. Therefore, the exemption is authorized by law.
The NRC staff has concluded in the safety evaluation associated with this exemption under ADAMS Accession No. ML22054A005 (Enclosure 2) that the exemption represents low risk, is of minimal safety impact, and that adequate defense-in-depth and safety margins are preserved. DAFAS is not credited in the Palo Verde UFSAR Chapters 6 and 15 accident analyses for actuating AFS to remove residual heat. AFAS is the credited means for initiating AFS in the UFSAR analyses as well as in the Palo Verde PRA model and will be unaffected by the proposed removal of DAFAS. In addition, the NRC staff has concluded that it is acceptable for the licensee to credit existing operator manual actions within the emergency operating procedures to initiate AFS under ATWS conditions as defense-in-depth in support of the requested exemption. Thus, granting this exemption request will not pose undue risk to public health and safety.
The proposed exemption will allow the removal of DAFAS from the licensing basis for Palo Verde Units 1, 2, and 3 as a diverse automatic actuation of AFS under ATWS conditions satisfying partial requirements of 10 CFR 50.62(c)(1). The NRC staff has reviewed the exemption request in the SE associated with this exemption. The NRC concluded in the associated SE that the licensee's submittal demonstrates that the reactor protection system, the engineered safety features actuation system (ESFAS) and AFAS, and the supplemental protection system (SPS) are designed and maintained with high reliability to preclude ATWS conditions and are monitored under 10 CFR 50.65, “Requirements for monitoring the effectiveness of maintenance at nuclear power plants.” The NRC staff also concluded that adequate defense-in-depth and safety margins will be preserved with the removal of DAFAS from the licensing basis for Palo Verde Units 1, 2, and 3. The licensee will continue to meet all other requirements in 10 CFR 50.62(c)(1). Further, the exemption does not involve security requirements and does not create a security risk. Therefore, the exemption is consistent with the common defense and security.
The licensee has asserted that continuing to maintain DAFAS in the plant licensing basis represents an undue hardship in accordance with 10 CFR 50.12(a)(2)(iii) due to its obsolescence. DAFAS is no longer supported by the vendor and spare parts are not readily available for the system. Significant engineering resources are required to reverse-engineer parts and frequent fiber optic communications problems often affect DAFAS system reliability. DAFAS operates on a vendor-supplied proprietary platform that is unique to Palo Verde. The vendor is no longer in business and Palo Verde can no longer obtain the Modicon programmable logic controllers, displays and associated equipment to maintain DAFAS. Since these replacement parts can no longer be obtained through generally available sources, the licensee has established that maintaining or replacing DAFAS in the given circumstances is a hardship. Furthermore, the Statement of Considerations associated with 10 CFR 50.62(c)(1) (49 FR 26038, dated June 26, 1984) state that the installation of diverse equipment to trip the turbine and initiate auxiliary feedwater have only a marginally favorable value/impact for Combustion Engineering plants such as Palo Verde. The NRC staff has concluded that the licensee has demonstrated that removal of DAFAS from the Palo Verde licensing basis represents low risk and only a minimal safety impact. Therefore, the maintaining or replacing of DAFAS in the given circumstances is an undue hardship on the licensee. For these reasons, granting an exemption to allow removal of DAFAS from the Palo Verde licensing basis supports the claimed special circumstance of undue hardship.
For more technical details, refer to the SE associated with this exemption under ADAMS Accession No. ML22054A005 (Enclosure 2).
The NRC staff determined in the associated SE that the exemption discussed herein meets the eligibility criteria for the categorical exclusion set forth in 10 CFR 51.22(c)(9) because the granting of this exemption involves: (i) No significant hazards consideration, (ii) no significant change in the types or a significant increase in the amounts of any effluents that may be released offsite, and (iii) no significant increase in individual or cumulative occupational radiation exposure. Therefore, in accordance with 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared in connection with the NRC's consideration of this exemption request.
Accordingly, the Commission has determined that, pursuant to 10 CFR 50.12, the exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security. Also, special circumstances are present. Therefore, the Commission hereby grants APS an exemption from the specific requirement of 10 CFR 50.62(c)(1) to provide equipment that is diverse from the reactor trip system to automatically initiate the auxiliary (or emergency) feedwater system under conditions indicative of an ATWS. As stated above, APS will continue to meet all other requirements of 10 CFR 50.62(c)(1) at Palo Verde Units 1, 2, and 3.
Dated at Rockville, Maryland, this 23rd day of March 2022.
For the Nuclear Regulatory Commission.
/RA/
Pension Benefit Guaranty Corporation.
Notice of intent to request extension of OMB approval of information collection.
The Pension Benefit Guaranty Corporation (PBGC) intends to request that the Office of Management and Budget (OMB) extend approval, under the Paperwork Reduction Act, of a collection of information contained its regulation on Rules for Administrative Review of Agency Decisions. This notice informs the public of PBGC's intent and solicits public comment on the collection of information.
Comments must be submitted on or before May 31, 2022.
Comments may be submitted by any of the following methods:
•
•
•
Commenters are strongly encouraged to submit public comments electronically. PBGC expects to have limited personnel available to process public comments that are submitted on paper through mail. Until further notice, any comments submitted on paper will be considered to the extent practicable.
All submissions received must include the agency's name (Pension Benefit Guaranty Corporation, or PBGC) and refer to OMB control number 1212–0061. All comments received will be posted without change to PBGC's website,
Copies of the collection of information may be obtained by writing to Disclosure Division, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street NW, Washington, DC 20005–4026, or calling 202–229–4040 during normal business hours. If you are deaf, hard of hearing, or have a speech disability, please dial 7–1–1 to access telecommunications relay services.
Melissa Rifkin (
The Pension Benefit Guaranty Corporation (PBGC) intends to request that the Office of Management and Budget (OMB) extend approval, under the Paperwork Reduction Act, of a collection of information contained in its regulation on Rules for Administrative Review of Agency Decisions (29 CFR part 4003) (OMB control number 1212–0061;
PBGC's regulation on Rules for Administrative Review of Agency Decisions (29 CFR part 4003) prescribes rules governing the issuance of initial determinations by PBGC and the procedures for requesting and obtaining administrative review of initial determinations. Certain types of initial determinations are subject to administrative appeals, which are covered in subpart D of the regulation. Subpart D prescribes rules on who may file appeals, when and where to file appeals, contents of appeals, and other matters relating to appeals. Most appeals filed with PBGC are filed by individuals (participants, beneficiaries, and alternate payees) in connection with benefit entitlement or amounts. A small number of appeals are filed by companies in connection with other matters, such as plan coverage under section 4021 of ERISA or liability under sections 4062(b)(1), 4063, or 4064. For appeals of benefit determinations, PBGC has optional forms for filing appeals (Form 724) and requests for extensions of time to appeal (Form 723). PBGC needs the required information to resolve matters raised in appeals of PBGC's initial determinations.
PBGC is proposing some minor editorial and formatting changes to Forms 723 and 724. In addition, it is proposing to make the forms fillable online. These are intended to make the forms easier for appellants to complete.
The collection of information under the regulation has been approved under OMB control number 1212–0061 (expires July 31, 2022). PBGC intends to request that OMB extend its approval for another 3 years. 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.
PBGC estimates that each year there will be 300 appeals and 75 requests for extensions filed annually under this regulation. The total estimated annual burden of the collection of information is 293 hours and $37,400.
PBGC is soliciting public comments to—
• 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 methodologies and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Issued in Washington, DC, by:
Postal Regulatory Commission.
Notice.
The Commission is noticing recent Postal Service filings for the Commission's consideration concerning negotiated service agreements. This notice informs the public of the filings, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
1.
This Notice will be published in the
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a Priority Mail Express International, Priority Mail International & First-Class Package International Service contract to the list of Negotiated Service Agreements in the Competitive Product List in the Mail Classification Schedule.
Christopher C. Meyerson, (202) 268–7820.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on March 23, 2022, it filed with the Postal Regulatory Commission a
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 350l–3520), the Securities and Exchange Commission (the “Commission”) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget for extension and approval.
Conflicts of interest between investment company personnel (such as portfolio managers) and their funds can arise when these persons buy and sell securities for their own accounts (“personal investment activities”). These conflicts arise because fund personnel have the opportunity to profit from information about fund transactions, often to the detriment of fund investors. Beginning in the early 1960s, Congress and the Securities and Exchange Commission (“Commission”) sought to devise a regulatory scheme to effectively address these potential conflicts. These efforts culminated in the addition of section 17(j) to the Investment Company Act of 1940 (the “Investment Company Act”) (15 U.S.C. 80a–17(j)) in 1970 and the adoption by the Commission of rule 17j–1 (17 CFR 270.17j–1) in 1980.
Section 17(j) makes it unlawful for persons affiliated with a registered investment company (“fund”) or with the fund's investment adviser or principal underwriter (each a “17j–1 organization”), in connection with the purchase or sale of securities held or to be acquired by the investment company, to engage in any fraudulent, deceptive, or manipulative act or practice in contravention of the Commission's rules and regulations. Section 17(j) also authorizes the Commission to promulgate rules requiring 17j–1 organizations to adopt codes of ethics.
In order to implement section 17(j), rule 17j–1 imposes certain requirements on 17j–1 organizations and “Access Persons”
The rule requires each Access Person of a fund (other than a money market fund or a fund that does not invest in Covered Securities) and of an investment adviser or principal underwriter of the fund, who is not subject to an exception,
The requirements that the management of a rule 17j–1 organization provide the fund's board with new and amended codes of ethics and an annual issues and certification report are intended to enhance board oversight of personal investment policies applicable to the fund and the personal investment activities of Access Persons. The requirements that Access Persons provide initial holdings reports, quarterly transaction reports, and annual holdings reports and request approval for purchases of securities through IPOs and private placements are intended to help fund compliance personnel and the Commission's examinations staff monitor potential conflicts of interest and detect potentially abusive activities. The requirement that each rule 17j–1 organization maintain certain records is intended to assist the organization and the Commission's examinations staff in determining if there have been violations of rule 17j–1.
We estimate that annually there are approximately 85,297 respondents under rule 17j–1, of which 15,297 are rule 17j–1 organizations and 70,000 are Access Persons. In the aggregate, these respondents make approximately 107,363 responses annually. We estimate that the total annual burden of complying with the information collection requirements in rule 17j–1 is approximately 376,628 hours. This hour burden represents time spent by Access Persons that must file initial and annual holdings reports and quarterly transaction reports, investment personnel that must obtain approval before acquiring beneficial ownership in any securities through an IPO or private placement, and the responsibilities of Rule 17j–1 organizations arising from information collection requirements under rule 17j–1. These include notifying Access Persons of their reporting obligations, preparing an annual rule 17j–1 report and certification for the board, documenting their approval or rejection of IPO and private placement requests, maintaining annual rule 17j–1 records, maintaining electronic reporting and recordkeeping systems, amending their codes of ethics as necessary, and, for new fund complexes, adopting a code of ethics.
We estimate that there is an annual cost burden of approximately $5,000 per fund complex, for a total of $4,020,000 associated with complying with the information collection requirements in rule 17j–1. This represents the costs of purchasing and maintaining computers and software to assist funds in carrying out rule 17j–1 recordkeeping.
These burden hour and cost estimates are based upon the Commission staff's experience and discussions with the fund industry. The estimates of average burden hours and costs are made solely for the purposes of the Paperwork Reduction Act. These estimates are not derived from a comprehensive or even a representative survey or study of the costs of Commission rules.
Compliance with the collection of information requirements of the rule is mandatory and is necessary to comply with the requirements of the rule in general. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid control number. Rule 17j–1 requires that records be maintained for at least five years in an easily accessible place.
Please direct your written comments to David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, C/O John Pezzullo, 100 F Street NE, Washington, DC 20549; or send an email to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Rule 4756(a)(3), in light of planned changes to the System as well as to address existing issues, 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.
Presently, the Exchange is making functional enhancements and improvements to specific Order Types
To support and prepare for these upgrades and enhancements, the Exchange previously submitted four rule filings to the Commission that amended its rules pertaining to, among other things, Market Maker Peg Orders, Orders with Reserve Size, Orders with Pegging and Trade Now Attributes, and Discretionary Orders.
In pertinent part, existing Rule 4756(a)(3) states as follows, with respect how the Exchange handles partial Order cancellations to reduce share size:
In addition, a partial cancellation of an Order to reduce its share size will not affect the priority of the Order on the book; provided, however, that such a partial cancellation may not be made with respect to an MOO Order, an LOO Order, an OIO Order, an MOC Order, an LOC Order, an IO Order, or a Pegged Order (including a Discretionary Order that is Pegged).
Going forward, planned upgrades will provide for the Exchange to process partial cancellations of all Order Types and Attributes entered through all of its available and applicable Order Entry Protocols, including RASH, OUCH, FIX, QIX and FLITE,
The Exchange believes that it is reasonable to allow the partial
Moreover, the Exchange notes that the proposal will simplify and harmonize the Exchange's processing of partial cancellations across its Order Entry Protocols.
Additionally, the proposed Rule change will address ambiguities in the existing Rule text. The existing Rule text does not state expressly the Exchange's current practice of restricting the loss of priority following a partial cancellation to LOO, MOO, MOC, LOC, and Pegged Orders when such Orders are entered through RASH or FIX or QIX. The existing language suggests that partial cancellations of these Orders cause a loss of priority in all cases, regardless of the Exchange's Order Entry Protocol utilized to enter the Orders. In fact, the Exchange does process partial cancellations of these Orders without loss of priority when the Orders are entered through OUCH and FLITE. The proposed Rule change will address this issue by providing for consistent handling of partial cancellations across all Orders and all applicable and available Order Entry Protocols and by eliminating exceptions in the existing Rule text.
Similarly, the existing Rule is ambiguous as to the intended scope of its exception to the general rule for “Pegged Orders.” Although the Rule states that the exception applies to “Pegged Orders (including a Discretionary Order that is Pegged),” the Exchange does not intend for Orders with Midpoint Pegging to be part of this exception, and it applies the Rule accordingly. In other words, the Exchange processes partial cancellations for Orders with Midpoint Pegging (
Finally, the proposed Rule change will address a problem that the Exchange has uncovered with the manner in which the System presently processes OIO and IO Orders entered though RASH and FIX and QIX. As noted above, the Exchange intends for the existing Rule to mean that partially cancelled OIO and IO Orders entered through RASH or FIX or QIX lose priority. Nevertheless, the Exchange discovered, during the course of preparing its upgrades that the System presently processes partial cancellations of OIO and IO Orders entered through RASH or FIX or QIX without loss of priority. The Exchange believes that the proposed Rule will render the existing Rule text problem moot, and will better serve participants by improving the efficiency of their activity on the Exchange as well as their potential outcomes.
The Exchange intends to implement the foregoing changes during the Second Quarter of 2022. The Exchange will issue an Equity Trader Alert at least 7 days in advance of implementing the changes.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that its proposed amendment to Rule 4756(a)(3) is consistent with the Act. Eliminating the exception to the general Rule providing for the Exchange to process partial cancellations without loss of priority will benefit participants by enabling them to reduce the share size of their Orders without the need to sacrifice the priority of their Orders.
The Exchange believes that it is reasonable to allow the partial cancellation of an Order without the Order losing priority because the participant that entered the Order continues to express its willingness to trade at the price entered when the Order first came onto the Book. Moreover, if the Order is displayed, other participants quoting at the same price are aware of the priority of their Orders relative to the partially cancelled Order. While a partial cancellation may provide these other participants with greater opportunities to provide a fill, the Exchange does not believe that it would be reasonable for these participants to jump ahead of an Order with time priority merely because the size of the Order has been reduced. Similarly, if the partially cancelled order is non-displayed, other participants would have no awareness of its price, its original size, or its reduced size. Again, while other participants at that price may have an increased opportunity to provide a fill when the Order's size is reduced, they would not have an expectation that the priority of their Orders would change vis-à-vis that of an Order that arrived on the Book at an earlier time.
Moreover, the proposal will simplify and harmonize the Exchange's processing of partial cancellations across its Order Entry Protocols. This proposed amendment reflects planned upgrades that will allow the Exchange to process partial cancellation of Orders entered through all pertinent and available Order Entry Protocols without loss of priority.
Additionally, the proposed Rule change is consistent with the Act because it will eliminate ambiguities in the existing Rule text that do not fully reflect the Exchange's intended meaning or application of the Rule. As noted above, the existing Rule text does not state that the Exchange limits the loss of priority for partially cancelled Orders to LOO, MOO, MOC, LOC, and Pegged Orders when such Orders are entered through RASH or FIX or QIX. The existing language suggests that partial cancellations of these Orders lose priority in all cases, regardless of the Exchange's Order Entry Protocol utilized to enter the Orders. In fact, the Exchange does process partial cancellations of these Orders without loss of priority when the Orders are entered through OUCH or FLITE. The
Similarly, the existing Rule does not reflect the Exchange's intent that Orders with Midpoint Pegging are not included in this exception, even though it applies the Rule in this manner. In other words, the Exchange processes partial cancellations for Midpoint Pegging Orders without loss of priority. The Exchange recognizes that the Rule text does not specifically address Orders with Midpoint Pegging. Again, the proposed Rule change will eliminate this issue going forward because the Exchange will adopt consistent handling of partial cancellations across all Orders and applicable and available Order Entry Protocols.
The proposed Rule change is consistent with the Act because it will address a problem that the Exchange has uncovered with the manner in which the System presently processes OIO and IO Orders entered though RASH and FIX and QIX. As noted above, the Exchange intends for the existing Rule to mean that partially cancelled OIO and IO Orders entered through RASH or FIX or QIX lose priority. Nevertheless, during the course of preparing its upgrades, the Exchange discovered that the System presently does process partial cancellations of OIO and IO Orders entered through RASH and FIX and QIX without loss of priority. The Exchange believes that the proposed Rule will render the existing Rule text problem moot, and will better serve participants by improving the efficiency of their activity on the Exchange as well as their potential outcomes. Furthermore, it is consistent with the Act to ensure that the Exchange's Rules and practices are, and remain, in sync.
The Exchange does not believe that its proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. As a general principle, the proposed changes are reflective of the significant competition among exchanges and non-exchange venues for order flow. In this regard, proposed changes that facilitate enhancements to the Exchange's System and Order Entry Protocols as well as those that amend and clarify the Exchange's Rules regarding its Order Types and Attributes, are pro-competitive because they bolster the efficiency, integrity, and overall attractiveness of the Exchange in an absolute sense and relative to its peers.
Moreover, the proposed changes will not unduly burden intra-market competition among various Exchange participants. The Exchange's proposal to allow the partial cancellation of an Order without the Order losing priority will not impact intra-market competition because the participant that entered the Order continues to express its willingness to trade at the price entered when the Order first came onto the Book. Moreover, if the Order is displayed, other participants quoting at the same price are aware of the priority of their Orders relative to the partially cancelled Order. While a partial cancellation may provide these other participants with greater opportunities to provide a fill, the Exchange does not believe that it would be reasonable for these participants to jump ahead of an Order with time priority merely because the size of the Order has been reduced. Similarly, if the partially cancelled Order is non-displayed, other participants would have no awareness of its price, its original size, or its reduced size. Again, while other participants at that price may have an increased opportunity to provide a fill when the Order's size is reduced, they would not have an expectation that the priority of their Orders would change vis-à-vis that of an Order that arrived on the Book at an earlier time.
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) 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.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 13, 2021, Fixed Income Clearing Corporation (“FICC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR–FICC–2021–009 (the “Proposed Rule Change”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On January 26, 2022, pursuant to Section 19(b)(2) of the Act,
As described in the Notice, FICC proposes to amend the Government Securities Division (“GSD”) Rulebook (the “GSD Rules”) and the Mortgage-Backed Securities Division (“MBSD”) Clearing Rules (the “MBSD Rules,” and together with the GSD Rules, the “Rules”) of FICC in order to (1) revise its capital requirements for GSD members and MBSD members (collectively, “members”), (2) streamline its two credit risk monitoring systems, Watch List and enhanced surveillance list, and (3) make certain other clarifying, technical, and supplementary changes to implement items (1) and (2).
First, FICC proposes to revise various aspects of its capital requirements for several types of members. FICC proposes to increase minimum capital requirements for certain members. FICC also proposes to revise how it measures certain members' capital by incorporating common equity tier 1 capital and the standards established in the capital adequacy rules and regulations of the Federal Deposit Insurance Corporation. FICC would revise the reporting requirements concerning the capital requirements for certain members. In addition, for certain types of members who currently do not have specific amounts for their minimum capital requirements, the proposal would establish such a requirement.
Second, FICC proposes to revise its Watch List and enhanced surveillance list, which are both currently used to identify participants who would receive additional or enhanced credit risk monitoring. FICC proposes to revise its Watch List and delete its enhanced surveillance list. FICC also proposes to clarify that members on the Watch List are reported to FICC's management committees and regularly reviewed by FICC's senior management.
Third, FICC proposes to (1) revise or add headings and sub-headings and renumbering sections as appropriate, (2) revise defined terms and add appropriate defined terms to facilitate the proposed changes, (3) rearrange and consolidate paragraphs to promote readability, (4) fix typographical and other errors, and (5) other changes in order to improve the accessibility and transparency of the Rules.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
• Section 17A(b)(3)(F) of the Act,
• Section 17A(b)(3)(I) of the Act,
• Rule 17Ad–22(e)(18) under the Act,
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the Proposed Rule Change. In particular, the Commission invites the written views of interested persons concerning whether the Proposed Rule Change is consistent with Section 17A(b)(3)(F) of the Act,
Interested persons are invited to submit written data, views, and arguments regarding whether the Proposed Rule Change should be approved or disapproved by April 20, 2022. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by May 4, 2022.
The Commission asks that commenters address the sufficiency of FICC's statements in support of the Proposed Rule Change, which are set forth in the Notice,
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 21, 2022, Cboe EDGX Exchange, Inc. (“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 it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe BZX Exchange, Inc. (the “Exchange” or “BZX”) is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to amend its Fee Schedule. The text of the proposed rule change is provided as Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fee schedule for its equity options platform (“BZX Options”) to adopt fees for Certification Logical Port fees, effective March 1, 2022.
By way of background, the Exchange offers a variety of logical ports, which provide users with the ability within the Exchange's System to accomplish a specific function through a connection, such as order entry, data receipt or access to information. Specifically, the Exchange offers Logical Ports,
Lastly, the Exchange does not intend to prorate Certification Logical Ports for the first month of service and intends to make this clear in the notes section under the Options Logical Port Fees section of the Fees Schedule.
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.
As noted above, the Exchange's certification environment provides a robust and realistic testing experience using a replica of the Exchange's production environment process configurations. This environment enables market participants to manage risk more effectively through testing software development changes in certification prior to implementing them in the live trading environment, thereby reducing the likelihood of a potentially disruptive system failure in the live trading environment, which has the potential to affect all market participants. As such, the Exchange believes it's reasonable to adopt a Certification Logical Port fee as it better enables the Exchange to continue to maintain and improve its testing environment, which the Exchange believes serves to improve live production trading on the Exchange. The Exchange also believes the proposed Certification Logical Port fee is reasonable because while such ports will no longer be completely free, Members and non-Members will continue to be entitled to receive free of charge one Certification Logical Port for each type of logical port that are currently offered in the production environment. Notably, the Exchange believes one Certification Logical Port per logical port type will be sufficient for most users and indeed anticipates that the majority of users will not purchase additional Certification Logical Ports. More specifically, while the Exchange has no way of predicting with certainty the impact of the proposed changes, it anticipates approximately 17% of Users to be assessed fees for Certification Logical Ports (
The Exchange believes the proposed fee is also equitable and not unfairly discriminatory because it applies uniformly to all market participants that choose to obtain additional Certification Logical Ports. The Exchange also believes the proposed fee is reasonable, equitable and not unfairly discriminatory because it is designed to encourage market participants to be efficient with their respective Certification Logical Port usage. Without some sort of fee for its Certification Logical Ports, the Exchange believes that Members and non-Members may be less efficient in testing their systems, potentially resulting in excessive time and resources being consumed by the Exchange in supporting testing and certifying Members and non-Members to the detriment of all market participants as Exchange resources are diverted away from other trading operations. Additionally, similar to its production environment, the Exchange's certification environment does not have unlimited system capacity to support unlimited testing. As such, the proposed fee structure also ensures that firms that use the most capacity pay for that capacity, rather than placing that burden on market participants that have more modest needs. The Exchange lastly believes that its proposed fee is aligned with the goals of the Commission in facilitating a competitive market for all firms that trade on the Exchange and of ensuring that critical market infrastructure has “levels of capacity, integrity, resiliency, availability, and security adequate to maintain their operational capability and promote the maintenance of fair and orderly markets.”
The Exchange does not believe that the proposed rule change will impose any burden on intramarket or intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition because as the proposed change applies uniformly to all market participants. Additionally, the Exchange does not believe that the proposed fee creates an undue burden on competition because the Exchange will continue to offer free of charge one Certification Logical Port per each logical port type offered in the production environment. Although the Exchange now proposes to charge users for additional Certification Logical Ports, the Exchange believes without some sort of fee assessed for excess Certification Logical Ports, Members and non-Members may be less efficient in testing their systems, potentially resulting in excessive time and resources being consumed by the Exchange and also potentially impacting the certification environment's capacity thresholds. The proposed fee structure therefore would ensure that market participants that pay the proposed fee are the ones that demand the most resources from the Exchange. Also as discussed, the purchase of additional ports is optional and based on the business needs of each market participant. Moreover, such market participants will continue to benefit from access to the certification environment, which the Exchange believes provides a robust and realistic testing experience via a replica of the production environment.
The Exchange does not believe that the proposed rule changes will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Particularly, the proposed change applies only to the Exchange's certification environment. Additionally, the Exchange notes that it operates in a highly competitive market. Members have numerous alternative venues that they may participate on and direct their order flow, including 15 other options exchanges, as well as off-exchange venues, where competitive products are
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 23, 2021, the 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” or “Exchange Act”)
On September 30, 2021, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 24, 2022, the Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) advance notice SR–OCC–2022–801 (“Advance Notice”) pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, entitled Payment, Clearing and Settlement Supervision Act of 2010 (“Clearing Supervision Act”)
Section 806(e)(1)(G) of the Clearing Supervision Act provides that OCC may implement the changes if it has not received an objection to the proposed changes within 60 days of the later of (i) the date that the Commission receives the Advance Notice or (ii) the date that any additional information requested by the Commission is received,
Pursuant to Section 806(e)(1)(H) of the Clearing Supervision Act, the Commission may extend the review period of an advance notice for an additional 60 days, if the changes proposed in the advance notice raise novel or complex issues, subject to the Commission providing the clearing agency with prompt written notice of the extension.
Here, as the Commission has not requested any additional information, the date that is 60 days after OCC filed the Advance Notice with the Commission is March 25, 2022. However, the Commission finds the issues raised by the Advance Notice complex because OCC proposes to change three models within its margin methodology, in part, to build the foundation for a single, consistent framework to model equity volatility products in margin and stress testing.
Accordingly, the Commission, pursuant to Section 806(e)(1)(H) of the Clearing Supervision Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Section 30(b) of the Investment Company Act of 1940 (“Investment Company Act”)
Compliance with rule 30b1–7 is mandatory for any fund that holds itself out as a money market fund in reliance on rule 2a–7. Responses to the disclosure requirements will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The following estimates of average burden hours and costs are made solely for purposes of the Paperwork Reduction Act and are not derived from a comprehensive or even representative survey or study of the cost of Commission rules and forms.
The Commission calculates there are currently 353
We estimate that 35% of money market funds (or 124 money market funds, broken down into 121 existing funds and 3 new funds)
New money market funds: (190 hours × blended hourly rate of $325 for a financial reporting manager ($318 per hour), senior accountant ($237 per hour), senior database administrator ($373 per hour), senior portfolio manager ($360 per hour) and compliance manager ($339 per hour)) = $61,750. The blended hourly rate was calculated as ($318 + $237 + $373 + $360 + $339/5 = $325. Three new money market funds × 190 hours with an internal time cost of $61,750 per fund = 570 hours with an internal time cost of $185,250.
Aggregate annual hourly burden for all funds filing reports on Form N–MFP in house: 18,876 hours + 570 hours = 19,446 hours.
Aggregate annual costs for all funds filing reports on Form N–MFP in house: $6,134,700 + $185,250 = $6,319,950.
We estimate that 65% of money market funds (or 229 money market funds, broken down into 224 existing funds and 5 new funds)
New money market funds: (125 hours × blended hourly rate of $325 for a financial reporting manager ($318 per hour), fund senior accountant ($237 per hour), senior database administrator ($373 per hour), senior portfolio manager ($360 per hour) and compliance manager ($339 per hour)) = $40,625. The blended hourly rate was calculated as ($318 + $237 + $373 + $360 + $339)/5 = $325. Five new money market funds × 125 hours with an internal cost of $40,625 per fund = 625 hours with an internal time cost of $203,125.
Aggregate annual hourly burden for all funds filing reports on Form N–MFP using a third party service provider: 24,192 6 hours + 625 hours = 24,817 hours.
Aggregate annual costs for all funds filing reports on Form N–MFP using a third party service provider: $7,862,400 + $203,125 = $8,065,525.
Cost burden is the cost of goods and services purchased in connection with complying with the collection of information requirements of rule 30b1–7 and Form N–MFP. The cost burden does not include the cost of the hour burden discussed above.
Based on discussions with industry participants, we estimate that money market funds that file reports on Form N–MFP in house license a third-party software solution to assist in filing their reports at an average cost of $3,900 per fund per year. In addition, we estimate that money market funds that use a service provider to prepare and file reports on Form N–MFP pay an average fee of $9,300 per fund per year. In sum, we estimate that all money market funds
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication by May 31, 2022.
Please direct your written comments to David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, C/O John Pezzullo, 100 F Street NE, Washington, DC 20549; or send an email to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
(a) Banque Centrale de Compensation, which conducts business under the name LCH SA (“LCH SA”), is proposing to amend its (i) CDS Clearing Supplement (“Supplement”) and (ii) CDS Clearing Procedures (“Procedures”) to incorporate new terms and to make conforming, clarifying and clean-up changes to implement a delegation mechanism for clients of CDSClear clearing members which applies in the context of the restructuring process for swaptions (the “Proposed Rule Change”).
The text of the Proposed Rule Change has been annexed [sic] as Exhibit 5.
The implementation of the Proposed Rule Change will be contingent on LCH SA's receipt of all necessary regulatory approvals.
(b) Not applicable.
(c) Not applicable.
In its filing with the Commission, LCH SA 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. LCH SA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of these statements.
The purpose of the Proposed Rule Change is to to [sic] amend the restructuring notification process applicable in respect of swaptions registered in a Client Account Structure. Currently, in the event of a restructuring which would be applicable to a component transaction of the underlying index transaction to which a set of swaptions relate, Clearing Members would be in charge of sending and receiving the relevant notices in respect of this restructuring and notifying LCH SA of any such notice delivered or received by no later than 5:00 p.m. on the cut-off date. Where such restructuring also relate to swaptions registered in a Client Account Structure, this also implies from the Client that it shall first deliver the restructuring notice to its Clearing Member and its Clearing Member delivers the equivalent notice to the other Clearing Member to allow for this notification requirement by the relevant Clearing Member to LCH SA by no later than 5:00 p.m. on the cut-off date.
The proposed amendments to the restructuring process for swaptions registered in a Client Account Structure will remove any dependency between the notification duties in the context of a restructuring. The proposed rule change will provide for a delegation mechanism whereby Clearing Members shall appoint their Clients as their Restructuring Delegation Beneficiaries for the purposes of sending and receiving the relevant notices to the other Clearing Member(s) or Client(s) in the event of a restructuring affecting the swaptions registered in their relevant Client Account Structure. The notification duty vis-à-vis LCH SA following the sending or receiving of the notices will also rely on such Restructuring Delegation Beneficiary. These amendments replicate the current delegation legal mechanism which is used in the context of the exercise process in respect of swaptions registered in a Client Account Structure.
LCH SA is proposing to modify Part C of the Supplement (“Part C”) to incorporate terms for implementing the delegation mechanism for the restructuring process and to make certain conforming and clean-up changes to improve clarity of Part C.
Section 1.2 (
The term “Restructuring Delegation Beneficiary” would be added to refer to a Client of a Clearing Member designated by such Clearing Member pursuant to new Section 5.7 (
The term “Swaption Restructuring CCM Client Notice would be added to make a cross reference to its definition as set out in Mandatory Provision 7.3 (
The existing term “Exercise Delegation Beneficiary” would be amended for clarification purpose as the current reference to “The” Client seems to imply that only a single Client of a Clearing Member could be appointed as an Exercise Delegation Beneficiary irrespective of whether the Clearing Member is acting on behalf of other Clients and therefore this reference will be replaced by “A” Client for the sake of clarity.
Because of the new Section 5.7 (
A new sub-paragraph (ii) would be added to Section 1.7 (c) (
Section 5 (
Sections 5.1, 5.3, 5.5 and 5.6 of Part C would be amended by adding references to the new defined term of Restructuring Delegation Beneficiary where needed.
An additional paragraph would be added at the end of Section 5.1 to provide for the express consent from the Clearing Member on the disclosure of its information needed for the purpose of the restructuring process.
A new Section 5.7 (
Because of the insertion of this new Section 5.7 (
Section 5.8 (
Paragraph (b) of Section 8.1 (
Finally, Section 13 (
Part C would be also amended to make the following conforming changes that are not related to the restructuring delegation.
In Section 6.1 (
In addition, and on the basis of new Section 5.7, Section 6.4 would specify that the designation of a Client as an Exercise Delegation Beneficiary may be withdrawn provided that there is no Exercise Cleared Transaction registered in the relevant Client Account Structure.
Appendix VIII (CCM Client Transaction Requirements) to Part C would be amended for the purposes of including references to the new delegation mechanism for the restructuring process. Any Client designated as a Restructuring Delegation Beneficiary will be in charge of sending and receiving the relevant restructuring notice for the relevant Swaption Index Cleared Transaction directly to the relevant Clearing Member or Client on behalf of its Clearing Member. As a
The changes made to Section 6.1 (
Mandatory Provision 5.6 would be amended to add a reference to the CCM since contact details of a CCM Client could be also provided by a CCM to LCH SA.
The current Mandatory Provision 7 is entirely removed from Appendix VIII as it applies to the delivery of notices in respect of the mirroring transaction between a CCM Client and its CCM in the event of restructuring, which will be no longer needed following the implementation of the proposed rule change. New Mandatory Provision 7 will be entitled “Designation of CCM Client as a Restructuring Delegation Beneficiary by CCM” and replicates the equivalent provisions of Mandatory Provision 5 (Designation of CCM Client as an Exercise Delegation Beneficiary) subject to the necessary amendments linked to the restructuring process. New paragraph 7.1 will provide for the mandatory designation of a CCM Client as a Restructuring Delegation Beneficiary by its CCM in accordance with new Section 5.7 of Part C. New paragraph 7.2 will provide that neither the CCM nor the CCM Client shall send the relevant restructuring notices for the mirroring transaction between the CCM and its CCM Client but instead the CCM Client as the Restructuring Delegation Beneficiary shall send or receive the relevant restructuring notices for the corresponding CCM Client Cleared Transaction pursuant to Part C, such restructuring notices being deemed sent or received in respect of the relevant mirroring transaction. The following new paragraph 7.3 provides for the duty to deliver a Swaption Restructuring CCM Client Notice to LCH SA by the Restructuring Delegation Beneficiary. If such notification is not made within the required timeframe, LCH SA will decide either to give effect to the restructuring notices pursuant to Section 5.8(c) of Part C or not to give effect to the restructuring notices then, following Exercise, an amount shall be payable between the Clearing Members equal to the difference between the value of the Matched Buyer Contract had the Swaption Restructuring CCM Client Notice been given to LCH SA within the required timeframe and the value of such contract in the absence of such Swaption Restructuring CCM Client Notice having been given. This amount shall be determined and paid in accordance with the provisions of this new paragraph. New paragraph 7.4 relates to the contact details of LCH SA and the CCM Client to be used for the purposes of delivering the relevant notices. Last paragraph 7.5 provides for a confidentiality waiver regarding the notice details provided by the CCM Client.
Finally, the proposed amendments to the Supplement also contain typographical corrections in Sections 3.1 and 8.1(c) of Part C and Mandatory Provisions 5.1 and 5.4 of Appendix VIII to Part C without affecting the meanings of such Sections or Mandatory Provisions.
LCH SA also proposes to modify Section 5 of the Procedures to incorporate terms for implementing the new delegation mechanism for the purposes of the restructuring process applicable in respect of swaptions.
Section 5.19.1 which currently deals with the delegation applicable to the exercise process will be amended for taking into account the delegation for the restructuring process. Consequently, Section 5.19.1 will be entitled “Delegation by Clearing Members to Clients” and Section 5.19 “Delegation by Clearing Members to Clients and Electronic Exercise Platform”.
Pursuant to amended Section 5.19.1, a Clearing Member which has delegated to a Client the power to send and receive the relevant notices in the context of a restructuring for swaptions in accordance with Section 5 of Part C shall notify such Restructuring Delegation by sending the relevant form to LCH SA which will be defined as the Delegation Form as it will contain both Exercise Delegation and Restructuring Delegation. The defined term of “Exercise Delegation Withdrawal” will be also replaced by “Delegation Withdrawal” to cover the possibility for withdrawing the delegation applicable in respect of the restructuring process and references to provisions of Part C that are equivalent to the withdrawal for the exercise process will be added for the restructuring process.
Other amendments will be made to Section 5.19.1 in order to include the references to either the Restructuring Delegation Beneficiary or the Restructuring Delegation where relevant.
LCH SA believes that the Proposed Rule Change is consistent with the requirements of Section 17A of the Securities Exchange Act of 1934
Further, LCH SA believes that the proposed changes to the Rule Book, Supplement and Procedures are consistent with requirements of Rule 17Ad–22(e)(17).
As described above, the Proposed Rule Change will enable LCH SA to more effectively manage the operational notification risks associated with the restructuring event process by providing an alternative solution with an operational delegation mechanism for
By implementing a relevant and consistent delegation legal mechanism, the Proposed Rule Change is reducing potential legal risk at LCH SA and is therefore consistent with the requirements of a well-founded, clear, transparent, and enforceable legal framework of Exchange Act Rule 17Ad–22(e)(1).
For the reasons stated above, LCH SA believes that the Proposed Rule Change with respect to the Supplement and Procedures in connection with the implementation of the delegation mechanism for the restructuring notification process for swaptions are consistent with the requirements of prompt and accurate clearance and settlement of securities transactions in Section 17(A)(b)(3)(F)
Section 17A(b)(3)(I) of the Act requires that the rules of a clearing agency not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
Written comments relating to the proposed rule change have not been solicited or received. LCH SA will notify the Commission of any written comments received by LCH SA.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–LCH SA–2022–003 and should be submitted on or before April 20, 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 adopt new LTSE Rule 2.154 and amend LTSE Rule 2.160. The proposed rule change is based on recent changes made by the Financial Industry Regulatory Authority, Inc. (“FINRA”) to its Continuing Education Program
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 statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange sets forth certain continuing education requirements for persons associated with a Member which are based on certain FINRA rules.
Specifically, the proposed rule change would (i) adopt new LTSE Rule 2.154 to incorporate by reference FINRA Rule 1240(c) and Supplementary Material .01 and .02, which addresses how an associated person of a member can maintain their qualifications following the termination of a registration category, (ii) delete LTSE Rule 2.160(o) (Lapse of Registration and Expiration of SIE) because its substance is being replaced by new Rule 2.154, and (iii) amend Supplementary Material .01 to LTSE Rule 2.160(g) to state that effective March 15, 2022, LTSE will not accept any new initial designations for waiver for persons working for a financial services industry affiliate of a Member as specified therein. Each of these proposed changes align with changes to FINRA's Continuing Education Program,
The proposed rule change is part of a larger initiative in which LTSE intends to align the structure of its registration, continuing education and supervision rules with those of FINRA. As noted above, however, the proposed rule change addresses only those changes that become effective on March 15, 2022.
Effective March 15, 2022, FINRA has established a program providing eligible individuals who terminate any of their representative or principal registrations with the option of maintaining their qualification for certain terminated registrations by completing annual continuing education (“Maintaining Qualifications Program” or “MQP”). The rule change provides individuals who elect this option a maximum of five years in which to re-register with a member firm without having to requalify by exam or having to obtain an exam waiver by adopting paragraph (c) under FINRA Rule 1240 and related Supplementary Material .01 and .02.The amended FINRA rule did not eliminate the two-year qualification period.
• Individuals would be required to be registered in the terminated registration category for at least one year immediately prior to the termination of that category;
• individuals could elect to participate when they terminate a registration or within two years from the termination of a registration;
• individuals would be required to complete annually all prescribed continuing education;
• individuals would have a maximum of five years in which to re-register;
• individuals who have been CE inactive for two consecutive years, or who become CE inactive for two consecutive years during their participation, would not be eligible to participate or continue;
• individuals who are subject to a statutory disqualification, or who become subject to a statutory disqualification following the termination of their registration or during their participation, would not be eligible to participate or continue.
FINRA has included a look-back provision in the amended rules that would, subject to specified conditions, extend the proposed option to individuals who have been registered as a representative or principal within two years immediately prior to the implementation date of the rule change and individuals who have been Financial Services Affiliate Waiver Program (“FSAWP”) participants
In addition, the amended Supplementary Material .02 to FINRA Rule 1240 includes a re-eligibility provision that would allow individuals to regain eligibility to participate each time they re-register with a firm for a period of at least one year and subsequently terminate their registration, provided that they satisfy the other participation conditions and limitations.
To align with the changes discussed above, proposed new LTSE Rule 2.154 would state that LTSE Members and associated persons of a Member shall comply with FINRA Rule 1240(c) and Supplementary Material .01 and .02, as if such Rule were part of the Exchange's Rules. Additionally, for the purpose of LTSE Rule 2.154, cross-references in incorporated FINRA Rule 1240(c) to FINRA Rule 1240(a)(2) shall refer to LTSE Rule 2.160(p)(1) (Regulatory Element). The proposed rule change would delete LTSE Rule 2.160(o) as the approach to a lapse in registration would be covered by new LTSE Rule 2.154.
In connection with this new continuing education regime, FINRA amended Supplementary Material .09 to its Rule 1210 to state that it will not accept any new participants for the FSAWP beginning on March 15, 2022. To mirror changes to its FSAWP, LTSE has added new language to Supplementary Material .01 in LTSE Rule 2.160(g) to note that effective March 15, 2022, LTSE will not accept any new initial designations for individuals under its identical FSAWP.
LTSE believes that its proposal is consistent with Section 6(b) of the Act
As noted above, the proposed rule change seeks to align the Exchange's Rules with certain recent changes to FINRA rules which have been approved by the Commission.
The Exchange believes that establishing a path for individuals to maintain their qualification following the termination of a registration will reduce unnecessary impediments to requalification and promote greater diversity and inclusion in the securities industry without diminishing investor protection.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed rule change, which harmonizes its rules with recent rule changes adopted by FINRA, will reduce the regulatory burden placed on market participants engaged in trading activities across different markets.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b–4(f)(6) normally does not become operative for 30 days after the date of filing. However, pursuant to Rule 19b–4(f)(6)(iii), the Commission may designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that this proposed rule change may become operative immediately upon filing. Rule 19b–4(f)(6)(iii)
Waiver of the 30-day operative delay would allow the Exchange to implement proposed changes to the Maintaining Qualifications Program by March 15, 2022 to coincide with FINRA's announced implementation date, thereby eliminating the possibility of a significant regulatory gap between the FINRA and LTSE rules, providing more uniform standards across the securities industry, and helping to avoid confusion for registered persons of the Exchange that are also FINRA members. For these reasons, the Commission believes that waiver of the 30-day operative delay for this proposal is consistent with the protection of investors and the public interest. Accordingly, the Commission hereby waives the 30-day operative delay and
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
All 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–LTSE–2022–02 and should be submitted on or before April 20, 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 C2 Exchange, Inc. (the “Exchange” or “C2 Options”) proposes to amend its Fees Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fees Schedule to adopt fees for Certification Logical Port fees, effective March 1, 2022.
By way of background, the Exchange offers a variety of logical ports, which provide users with the ability within the Exchange's System to accomplish a specific function through a connection, such as order entry, data receipt or access to information. Specifically, the Exchange offers BOE and FIX Logical Ports,
Lastly, the Exchange does not intend to prorate Certification Logical Ports for the first month of service and intends to make this clear in the notes section under the Logical Connectivity Fees section of the Fees Schedule.
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.
As noted above, the Exchange's certification environment provides a robust and realistic testing experience using a replica of the Exchange's production environment process configurations. This environment enables market participants to manage risk more effectively through testing software development changes in certification prior to implementing them in the live trading environment, thereby reducing the likelihood of a potentially disruptive system failure in the live trading environment, which has the potential to affect all market participants. As such, the Exchange believes it's reasonable to adopt a Certification Logical Port fee as it better enables the Exchange to continue to maintain and improve its testing environment, which the Exchange believes serves to improve live production trading on the Exchange. The Exchange also believes the proposed Certification Logical Port fee is reasonable because while such ports will no longer be completely free, TPHs and non-TPHs will continue to be entitled to receive free of charge one Certification Logical Port for each type of logical port that are currently offered in the production environment. Notably, the Exchange believes one Certification Logical Port per logical port type will be sufficient for most users and indeed anticipates that the majority of users will not purchase additional Certification Logical Ports. More specifically, while the Exchange has no way of predicting with certainty the impact of the proposed changes, it anticipates approximately 29% of Users to be assessed fees for Certification Logical Ports (
The Exchange believes the proposed fee is also equitable and not unfairly discriminatory because it applies uniformly to all market participants that choose to obtain additional Certification Logical Ports. The Exchange also believes the proposed fee is reasonable, equitable and not unfairly discriminatory because it is designed to encourage market participants to be efficient with their respective Certification Logical Port usage. Without some sort of fee for its Certification Logical Ports, the Exchange believes that TPHs and non-TPHs may be less efficient in testing their systems, potentially resulting in excessive time and resources being consumed by the Exchange in supporting testing and certifying TPHs and non-TPHs to the detriment of all market participants as Exchange resources are diverted away from other trading operations. Additionally, similar to its production environment, the Exchange's certification environment does not have unlimited system capacity to support unlimited testing. As such, the proposed
The Exchange does not believe that the proposed rule change will impose any burden on intramarket or intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule changes in connection with surcharge [sic] fees will impose any burden on intramarket competition because as the proposed change applies uniformly to all market participants. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition because as the proposed change applies uniformly to all market participants. Additionally, the Exchange does not believe that the proposed fee creates an undue burden on competition because the Exchange will continue to offer free of charge one Certification Logical Port per each logical port type offered in the production environment. Although the Exchange now proposes to charge users for additional Certification Logical Ports, the Exchange believes without some sort of fee assessed for excess Certification Logical Ports, TPHs and non-TPHs may be less efficient in testing their systems, potentially resulting in excessive time and resources being consumed by the Exchange and also potentially impacting the certification environment's capacity thresholds. The proposed fee structure therefore would ensure that market participants that pay the proposed fee are the ones that demand the most resources from the Exchange. Also as discussed, the purchase of additional ports is optional and based on the business needs of each market participant. Moreover, such market participants will continue to benefit from access to the certification environment, which the Exchange believes provides a robust and realistic testing experience via a replica of the production environment.
The Exchange does not believe that the proposed rule changes will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Particularly, the proposed change applies only to the Exchange's certification environment. Additionally, the Exchange notes that it operates in a highly competitive market. TPHs have numerous alternative venues that they may participate on and direct their order flow, including 15 other options exchanges, as well as off-exchange venues, where competitive products are available for trading. Indeed, participants can readily choose to send their orders to other exchange, and, additionally off-exchange venues, if they deem overall fee levels at those other venues to be more favorable. Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, 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.”
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to amend its Fees Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fees Schedule to adopt fees for Certification Logical Port fees, effective March 1, 2022.
By way of background, the Exchange offers a variety of logical ports, which provide users with the ability within the Exchange's System to accomplish a specific function through a connection, such as order entry, data receipt or access to information. Specifically, the Exchange offers BOE and FIX Logical Ports,
Lastly, the Exchange does not intend to prorate Certification Logical Ports for the first month of service and intends to make this clear in the notes section under the Logical Connectivity Fees section of the Fees Schedule.
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.
As noted above, the Exchange's certification environment provides a robust and realistic testing experience using a replica of the Exchange's production environment process configurations. This environment enables market participants to manage risk more effectively through testing software development changes in certification prior to implementing them in the live trading environment, thereby reducing the likelihood of a potentially disruptive system failure in the live trading environment, which has the potential to affect all market participants. As such, the Exchange believes it's reasonable to adopt a Certification Logical Port fee as it better enables the Exchange to continue to maintain and improve its testing environment, which the Exchange believes serves to improve live production trading on the Exchange. The Exchange also believes the proposed Certification Logical Port fee is reasonable because while such ports will no longer be completely free, TPHs and non-TPHs will continue to be entitled to receive free of charge one Certification Logical Port for each type of logical port that is currently offered in the production environment. Notably, the Exchange believes one Certification Logical Port per logical port type will be sufficient for most users and indeed anticipates that the majority of users will not purchase additional Certification Logical Ports. More specifically, while the Exchange has no way of predicting with certainty the impact of the proposed changes, it anticipates approximately 41% of Users to be assessed fees for Certification Logical Ports (
The Exchange believes the proposed fee is also equitable and not unfairly discriminatory because it applies uniformly to all market participants that choose to obtain additional Certification Logical Ports. The Exchange also believes the proposed fee is reasonable, equitable and not unfairly discriminatory because it is designed to encourage market participants to be efficient with their respective Certification Logical Port usage. Without some sort of fee for its Certification Logical Ports, the Exchange believes that TPHs and non-TPHs may be less efficient in testing their systems, potentially resulting in excessive time and resources being consumed by the Exchange in supporting testing and certifying TPHs and non-TPHs to the detriment of all market participants as Exchange resources are diverted away from other trading operations. Additionally, similar to its production environment, the Exchange's certification environment does not have unlimited system capacity to support unlimited testing. As such, the proposed fee structure also ensures that firms that use the most capacity pay for that capacity, rather than placing that burden on market participants that have more modest needs. The Exchange lastly believes that its proposed fee is aligned with the goals of the Commission in facilitating a competitive market for all firms that trade on the Exchange and of ensuring that critical market infrastructure has “levels of capacity, integrity, resiliency, availability, and security adequate to maintain their operational capability and promote the maintenance of fair and orderly markets.”
The Exchange does not believe that the proposed rule change will impose any burden on intramarket or intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition because as the proposed change applies uniformly to all market participants. Additionally, the Exchange does not believe that the proposed fee creates an undue burden on competition because the Exchange will continue to offer free of charge one Certification Logical Port per each logical port type offered in the production environment. Although the Exchange now proposes to charge users for additional Certification Logical Ports, the Exchange believes without some sort of fee assessed for excess Certification Logical Ports, TPHs and non-TPHs may be less efficient in testing their systems, potentially resulting in excessive time and resources being consumed by the Exchange and also potentially impacting the certification environment's capacity
The Exchange does not believe that the proposed rule changes will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Particularly, the proposed change applies only to the Exchange's certification environment. Additionally, the Exchange notes that it operates in a highly competitive market. TPHs have numerous alternative venues that they may participate on and direct their order flow, including 15 other options exchanges, as well as off-exchange venues, where competitive products are available for trading. Indeed, participants can readily choose to send their orders to other exchanges, and, additionally off-exchange venues, if they deem overall fee levels at those other venues to be more favorable. Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, 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.”
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send 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”),
Cboe BZX Exchange, Inc. (the “Exchange” or “BZX” or “BZX Equities”) is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to amend its Fee Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fee schedule for its equities platform (“BZX Equities”) to adopt fees for Certification Logical Port fees, effective March 1, 2022.
By way of background, the Exchange offers a variety of logical ports, which provide users with the ability within the Exchange's System to accomplish a specific function through a connection, such as order entry, data receipt or access to information. Particularly, the Exchange offers Logical Ports,
Lastly, the Exchange does not intend to prorate Certification Logical Ports for the first month of service and intends to make this clear in the notes section under the Purge and Market Data Logical Port Fees section of the Fees Schedule.
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.
As noted above, the Exchange's certification environment provides a robust and realistic testing experience using a replica of the Exchange's production environment process configurations. This environment enables market participants to manage risk more effectively through testing software development changes in certification prior to implementing them in the live trading environment, thereby reducing the likelihood of a potentially disruptive system failure in the live trading environment, which has the potential to affect all market participants. As such, the Exchange believes it's reasonable to adopt a Certification Logical Port fee as it better
The Exchange believes the proposed fee is also equitable and not unfairly discriminatory because it applies uniformly to all market participants that choose to obtain additional Certification Logical Ports. The Exchange also believes the proposed fee is reasonable, equitable and not unfairly discriminatory because it is designed to encourage market participants to be efficient with their respective Certification Logical Port usage. Without some sort of fee for its Certification Logical Ports, the Exchange believes that Members and non-Members may be less efficient in testing their systems, potentially resulting in excessive time and resources being consumed by the Exchange in supporting testing and certifying Members and non-Members to the detriment of all market participants as Exchange resources are diverted away from other trading operations. Additionally, similar to its production environment, the Exchange's certification environment does not have unlimited system capacity to support unlimited testing. As such, the proposed fee structure also ensures that firms that use the most capacity pay for that capacity, rather than placing that burden on market participants that have more modest needs. The Exchange lastly believes that its proposed fee is aligned with the goals of the Commission in facilitating a competitive market for all firms that trade on the Exchange and of ensuring that critical market infrastructure has “levels of capacity, integrity, resiliency, availability, and security adequate to maintain their operational capability and promote the maintenance of fair and orderly markets.”
The Exchange does not believe that the proposed rule change will impose any burden on intramarket or intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition because as the proposed change applies uniformly to all market participants. Additionally, the Exchange does not believe that the proposed fee creates an undue burden on competition because the Exchange will continue to offer free of charge one Certification Logical Port per each logical port type offered in the production environment. Although the Exchange now proposes to charge users for additional Certification Logical Ports, the Exchange believes without some sort of fee assessed for excess Certification Logical Ports, Members and non-Members may be less efficient in testing their systems, potentially resulting in excessive time and resources being consumed by the Exchange and also potentially impacting the certification environment's capacity thresholds. The proposed fee structure therefore would ensure that market participants that pay the proposed fee are the ones that demand the most resources from the Exchange. Also as discussed, the purchase of additional ports is optional and based on the business needs of each market participant. Moreover, such market participants will continue to benefit from access to the certification environment, which the Exchange believes provides a robust and realistic testing experience via a replica of the production environment.
The Exchange does not believe that the proposed rule changes will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Particularly, the proposed change applies only to the Exchange's certification environment. Additionally, the Exchange notes that it operates in a highly competitive market. Members have numerous alternative venues that they may participate on and direct their order flow, including 15 other equities exchanges, as well as a number of alternative trading systems and other off-exchange venues, where competitive products are available for trading. Indeed, participants can readily choose to send their orders to other exchanges, and, additionally off-exchange venues, if they deem overall fee levels at those other venues to be more favorable. Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, 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.”
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send 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”)
FINRA is proposing to amend FINRA Rule 7620B (Trade Reporting Facility Reporting Fees) to modify the trade reporting fees applicable to participants that use the FINRA/NYSE Trade Reporting Facility (“FINRA/NYSE TRF”).
The text of the proposed rule change is available on FINRA's website at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The FINRA/NYSE TRF, which is operated by NYSE Market (DE), Inc. (“NYSE Market (DE)”), is one of four FINRA facilities
NYSE Market (DE) proposes to modify the trade reporting fees applicable to FINRA members that use the FINRA/NYSE TRF (“Participants”). NYSE Market (DE) proposes to subject each Participant to a monthly fee that will be based on whether that Participant submitted trade reports to the FINRA/NYSE TRF during the relevant month, and if so, how many trade reports it submitted. FINRA is proposing to amend FINRA Rule 7620B (FINRA/NYSE Trade Reporting Facility Reporting Fees) accordingly. There is no new product or service accompanying the proposed fee change.
Under the governing limited liability company agreement,
The Business Member establishes pricing applicable to FINRA/NYSE TRF Participants for use of the FINRA/NYSE TRF. That pricing is then implemented pursuant to FINRA rules that FINRA must file with the Commission and that must be consistent with the Act. Specifically, FINRA/NYSE TRF Participants are charged fees pursuant to Rule 7620B and may qualify for transaction credits under Rule 7610B (Securities Transaction Credit) (such credits, “Securities Transaction Credits”).
According to the Business Member, the FINRA/NYSE TRF operates in a competitive environment. The FINRA Facilities have different pricing
The overall costs of operating and maintaining the FINRA/NYSE TRF involve both fixed and variable components. The variable component constitutes the majority of the cost and largely relates to the number of reports that the FINRA/NYSE TRF, on behalf of its subscribers, reports for public dissemination (or “tape”) purposes. It also reflects the number of reports submitted to the FINRA/NYSE TRF that are not published to the tape. Specifically, if the number of tape reports increases, the Business Member's variable costs increase, and conversely, if the number of tape reports decreases, the Business Member's variable costs decrease. The variable costs associated with tape reports are not related to the size (number of shares) of the reported transaction. Accordingly, the variable costs relating to a tape report for a trade for one share (or even less than one share) are the same as the variable costs relating to a tape report for 100,000 shares reported to the FINRA/NYSE TRF.
The Business Member is entitled to any profits and must cover any losses that arise from operating the FINRA/NYSE TRF. According to the Business Member, the profits or losses generally are the difference between:
1. The revenue (“Revenue”) from: (a) Subscriber fees charged in accordance with FINRA Rule 7620B (“Subscriber Fee Revenue”), and (b) market data revenue for the transaction information provided to the securities information processors (“SIPs”) via the FINRA/NYSE TRF less the Securities Transaction Credits (together, “Net Market Data Revenue”); and
2. the costs of operating and maintaining the FINRA/NYSE TRF.
According to the Business Member, in 2020 and 2021, costs of operating and maintaining the FINRA/NYSE TRF were greater than Revenues, causing the FINRA/NYSE TRF to run at a loss. According to the Business Member, during that time, the number of tape reports increased (particularly for smaller-sized transactions) and total Subscriber Fee Revenue decreased, without a relative change to the difference in total share volume reported to the FINRA/NYSE TRF as compared to other FINRA Facilities. More specifically, compared to the 2018 monthly average, as of December 31, 2021, monthly average tape report activity for the FINRA/NYSE TRF had increased by 329% and monthly average costs had increased by 146%. At the same time, monthly average Subscriber Fee Revenue had decreased by 19%. Net Market Data Revenue varied during the period, but overall it decreased as compared to the first quarter of 2018. Ultimately, the Business Member believes that the FINRA/NYSE TRF would continue to incur a significant loss if the current fee and credit structure remained in place, and that such losses would make the FINRA/NYSE TRF unsustainable in the long term.
Accordingly, the Business Member proposes to amend the fees set forth in FINRA Rule 7620B. By so doing, it has proposed a change that it believes
Under the current fee structure,
Under the proposed, simplified fee structure, the monthly fee would no longer depend on whether a Participant were a Retail Participant or its FINRA/NYSE TRF Market Share, and the current tiered structure would be removed. Rather, if a Participant submitted one or more trade reports to the FINRA/NYSE TRF during a given calendar month, the Participant would pay a monthly fee equal to the sum of (a) $1,000 plus (b) $0.0055 per published tape report. If a Participant submitted no trade reports to the FINRA/NYSE TRF during that calendar month, the Participant would pay a monthly fee of $2,000.
To effect the change, Rule 7620B would be amended as follows. First, the text “with the exception that Retail Participants shall not be subject to a monthly fee” would be deleted from the first paragraph. Second, the following text would be added to the end of the first paragraph:
The monthly fee will be calculated as follows:
(a) If the participant submits one or more trade reports to the FINRA/NYSE Trade Reporting Facility during a given calendar month, the participant will pay a monthly fee equal to the sum of (i) $1,000 plus (ii) $0.0055 per published tape report.
(b) If the participant submits no trade reports to the FINRA/NYSE Trade Reporting Facility during a given calendar month, the participant will pay a monthly fee of $2,000.
The monthly fee would continue to be charged at the end of the calendar month. As is true now, if a new FINRA/NYSE TRF Participant submitted the participant application agreement and reported no shares traded in a given month, the Participant would not be charged the monthly fee for the first two calendar months in order to provide time to connect to the FINRA/NYSE TRF.
The Business Member believes that pricing is the key factor for FINRA members when choosing which FINRA Facility to use. The Business Member expects that the proposed change would result in a fee increase for most FINRA/NYSE TRF Participants. In this competitive environment, FINRA members can report their OTC trades in NMS stocks to the FINRA/NYSE TRF's competitors if they deem pricing levels at the other FINRA Facilities to be more favorable, so long as they are participants of such other facilities. As a result, the Business Member believes that the proposed fee change will likely reduce its reported volumes. It is not possible to fully predict the number of FINRA members that would reduce their use of the FINRA/NYSE TRF or cease being a FINRA/NYSE TRF Participant as a result of the fee increase. Similarly, it is not possible to predict what the change in reporting to the FINRA/NYSE TRF would be.
As stated above, under the proposed fee structure, the monthly fee would no longer depend on whether a Participant were a Retail Participant or its FINRA/NYSE TRF Market Share, and the current tiered structure would be removed. The proposed fee schedule would be applied in the same manner to all FINRA members that are, or elect to become, FINRA/NYSE TRF Participants and would not apply differently to different sizes or types of Participants. Participants that are currently Retail Participants would be subject to the same monthly fee for not submitting any trade reports in a given month as current Non-Retail Participants.
By setting a base flat fee and tying the remainder of the fee to the number of tape reports a Participant submits to the FINRA/NYSE TRF during a given month, if any, the Business Member believes that the resulting fee would relate to the cost of operating and maintaining the facility more closely. Specifically, the Business Member's total cost of operating the FINRA/NYSE TRF does not differ based on whether the Participant is a Retail Participant or not. As a general matter, the flat portions of the proposed fees are designed to address the fixed costs, while the portion that is charged per published tape report is meant to address variable costs. The proposed rule is designed to have the monthly Subscriber Fee Revenue generally cover total costs, which would allow the FINRA/NYSE TRF to continue operating without amassing losses similar to those it recently has amassed.
Tying the fee directly to the number of trade reports the Participant submits to the FINRA/NYSE TRF during the month means that the Participant's fee will increase or decrease in line with any changes in the volume of such trade reports. This makes the proposed fee more directly tied to the Participant's usage of the FINRA/NYSE TRF, matching a Participant's fee with its activity and the related costs. For example, under the proposal, if a Participant submitted 6,000,000 trade reports to the FINRA/NYSE TRF during one month, it would have a monthly fee of $34,000. If it then submitted a lower volume of 6,000 trade reports to the FINRA/NYSE TRF during the following month, its fee would be reduced to $1,033. In recent years, there has been
Under the proposed change, there would no longer be a distinction between Retail Participants and other Participants. Based on experience, the Business Member believes that most, if not all, of the current Retail Participants do not report any trades to the FINRA/NYSE TRF during a given month. For example, using December 2021 data, two of the three current Retail Participants were inactive. Currently, all Retail Participants are exempt from the monthly fee.
That would change under the proposed rule change, as the current Retail Participants would become subject to a monthly fee. If, like most current Retail Participants, a Participant submitted no trade reports to the FINRA/NYSE TRF during a calendar month, it would pay a monthly fee of $2,000. Using December 2021 data, the two Retail Participants that were inactive, under the proposed fee change, would be assessed a fee of $2,000 for the month (compared to $0 under the current fee structure). If a Participant submitted one or more trade reports to the FINRA/NYSE TRF during a given calendar month, the Participant would pay a monthly fee equal to the sum of (a) $1,000 plus (b) $0.0055 per published tape report. The Retail Participant that was active in December 2021 would be assessed a fee of $1,799 for the month based on its reporting activity (compared to $0 under the current fee structure).
Participants that currently are Non-Retail Participants would no longer be subject to a fee that varied based on their FINRA/NYSE TRF Market Share. Rather, they would be subject to the same fees as all other Participants, as described above.
To facilitate comparison, the following table shows the estimated effect of the proposed change on the current Non-Retail Participants.
Based on the assumptions made in the table, current Non-Retail Participants that have no trade reports would not see a change in their fee, Non-Retail Participants with between 15,001 and 25,000 trade reports would see a decrease in their fee, and all other current Non-Retail Participants would see fee increases. As reflected in the table, based on the stated assumptions, Non-Retail Participants with fee increases would be subject to a monthly fee approximately equal to just over one to four times their current fee. If there were no change in reporting to the FINRA/NYSE TRF, such that Non-Retail Participants' reported volume stayed the same as it was in the first six months of 2021, under the proposed fee schedule, current Non-Retail Participants that have no trade reports would not see a change in their fee, but most other current Non-Retail Participants would see fee increases.
FINRA has filed the proposed rule change for immediate effectiveness. The operative date will be June 1, 2022.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b) of the Act,
As a general matter, the proposed fee schedule will be assessed in the same manner for all FINRA members that are, or elect to become, FINRA/NYSE TRF
FINRA believes that the proposed rule change provides for an equitable allocation of reasonable fees for the following reasons.
The Business Member believes that the FINRA/NYSE TRF would incur a significant loss if the current fee and credit structure remained in place. Accordingly, it proposes amendments to FINRA Rule 7620B, as discussed herein.
The Business Member believes that the proposed rule change is a reasonable amendment to the fee structure to address the current rate of losses, which if they continued, the Business Member believes would make the FINRA/NYSE TRF unsustainable in the long term. By setting a base flat fee and tying the remainder of the fee to the number of tape reports a Participant submits to the FINRA/NYSE TRF during a given month, if any, the Business Member believes that the proposed fee structure would correlate more closely to the manner by which the Business Member incurs the total costs associated with operating and maintaining the Facility. As stated above, as a general matter, the flat portions of the proposed fees are designed to address the fixed costs, while the portion that is charged per published tape report is meant to address variable costs. The proposed rule is reasonably designed to achieve a fee structure whereby the monthly fee revenue generally covers total costs, which would allow the FINRA/NYSE TRF to continue operating without amassing losses similar to those it recently has amassed.
The Business Member believes that partially tying the fee directly to the number of trade reports the Participant submits to the FINRA/NYSE TRF during the month is equitable, because the Participant's fee will increase or decrease in line with any changes in the number of submitted trade reports. This aspect of the fee structure ties the proposed fee more directly to the Participant's usage of the FINRA/NYSE TRF. In recent years, there has been an increase in the number of trade reports submitted. If that trend should abate, the fees would decrease as well.
The Business Member also believes that it is reasonable and equitable to charge a Participant a flat fee even if it does not submit any tape reports to the FINRA/NYSE TRF during the relevant month. First, the FINRA/NYSE TRF bears costs for operating the FINRA/NYSE TRF, even when a Participant does not submit tape reports during a given month. Second, the Business Member believes that the fee for inactivity during a particular month, which has not changed for Non-Retail Participants and would now apply to Retail Participants, is a reasonable method of encouraging all Participants to utilize the FINRA/NYSE TRF.
Currently, all Retail Participants are exempt from fees under FINRA Rule 7620B for reporting to the FINRA/NYSE TRF, but would become subject to trade reporting fees under the proposed rule change. The Business Member believes that the proposed rule change would be equitable because it would treat all Participants the same and the applicable fee would no longer depend on whether a Participant were a Retail Participant.
Similarly, the Business Member believes that applying the proposed fee structure, which is not based on the Participant's market share, also is equitable for Participants, including Retail Participants. As would be the case for a Non-Retail Participant, the proposed fee would be tied directly to the number of trade reports a Participant submits to the FINRA/NYSE TRF during the month and would not be tiered based on the Participant's FINRA/NYSE TRF Market Share. In this way, the proposed fee would be more directly tied to a Participant's access to and usage of the FINRA/NYSE TRF.
Thus, all Participants would be subject to monthly fees. The proposed fee schedule would be applied in the same manner to all firms that are, or elect to become, FINRA/NYSE TRF Participants. It would not apply differently to different sizes of Participants. By tying a portion of the fee directly to the number of trade reports that the Participant submits to the FINRA/NYSE TRF during the month, a Participant's trade reporting fess would in part correspond with a Participant's activity over the period.
The Business Member believes that the proposed change would significantly simplify Rule 7620B, removing the distinction between Retail Participants and Non-Retail Participants and removing the multiple fee tiers in current subsection (b). As a result, the proposed change would make it easier for market participants to determine their monthly fee and would add clarity to the rules.
FINRA believes that the proposed rule change is not unfairly discriminatory for the following reasons.
The Business Member believes that the FINRA/NYSE TRF would incur a significant loss if the current fee structure remained in place. Accordingly, it proposes to amend the fees set forth in FINRA Rule 7620B. By so doing, the Business Member has proposed a change that it believes is not unfairly discriminatory, as it believes that the resulting fee would correspond more closely with the total costs of operating and maintaining the Facility. The proposed rule is reasonably designed to tie the monthly fee revenue to the cost of operating and maintaining the FINRA/NYSE TRF, which would allow the FINRA/NYSE TRF to continue operating without amassing losses similar to those it recently has amassed.
The Business Member believes that it is not unfairly discriminatory to charge a Participant a flat fee even if it does not submit any tape reports to the FINRA/NYSE TRF during a given month. First, the FINRA/NYSE TRF bears ongoing costs for operating the FINRA/NYSE TRF, even when a Participant does not submit tape reports in a given month. Second, the Business Member believes that the inactivity fee, which has not changed, is a reasonable method of encouraging Participants to utilize the FINRA/NYSE TRF.
The Business Member believes that the proposed fee structure is not unfairly discriminatory because it would not differ for different types of Participants, and Retail Participants would be subject to the same fee structure as Non-Retail Participants. The Business Member believes that the proposed rule change would not be unfairly discriminatory because all FINRA member Participants would be treated the same.
Similarly, the Business Member believes that applying the proposed fee structure, which is not based on the Participant's market share, is not unfairly discriminatory. As would be the case for a Non-Retail Participant, the proposed fee would be tied directly to the number of trade reports a Participant submits to the FINRA/NYSE TRF during the month and would not be tiered based on the Participant's FINRA/NYSE TRF Market Share. Rather, the proposed fee would be more directly tied to a Participant's access to and usage of the FINRA/NYSE TRF Facility.
By tying a portion of the fee directly to the number of trade reports the Participant submits to the FINRA/NYSE
The Business Member believes that the proposed change is not unfairly discriminatory because a Participant that saw an increase in its monthly fee would be able to utilize another FINRA Facility. FINRA members can report their OTC trades in NMS stocks to the FINRA/NYSE TRF's competitors if they deem pricing levels at the other FINRA Facilities to be more favorable, so long as they are participants of such other facilities.
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Nonetheless, the Business Member does not believe that the proposed rule change would result in a burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Simply put, the Business Member believes that the proposed change is a rational response to increased losses. According to the Business Member, in 2020 and 2021, costs of operating and maintaining the FINRA/NYSE TRF were greater than Revenues, causing the FINRA/NYSE TRF to run at a loss. According to the Business Member, during that time, the volume of tape reports increased and the total Subscriber Fee Revenue decreased. More specifically, compared to the 2018 monthly average, as of December 31, 2021, monthly average tape report activity for the FINRA/NYSE TRF had increased by 329% and monthly average costs had increased by 146%. At the same time, monthly average Subscriber Fee Revenue had decreased by 19%. Net Market Data Revenue varied during the period, but overall it decreased as compared to the first quarter of 2018. Ultimately, the Business Member believes that the FINRA/NYSE TRF would continue to incur a significant loss if the current fee and credit structure remained in place.
The Business Member does not believe that such losses are sustainable in the long run. Accordingly, it proposes to amend the fees set forth in FINRA Rule 7620B. By so doing, the Business Member has proposed a change that it believes should ensure that the monthly fees cover the costs of operating and maintaining the FINRA/NYSE TRF, which would allow it to continue operating without amassing losses similar to those it currently has. The Business Member believes that the continued existence of the FINRA/NYSE TRF would be an asset to the competitive environment.
The Business Member does not believe that the proposed fee would place some market participants at a relative disadvantage compared to other market participants, because the proposed fee schedule would be applied in the same manner to all FINRA members that are, or elect to become, FINRA/NYSE TRF Participants. It would not apply differently to different sizes of Participants. Different types of Participants will be treated the same, and the amount of the monthly fee would no longer depend on whether a Participant were a Retail Participant or its FINRA/NYSE TRF Market Share.
As set forth above, if there were no change in reporting to the FINRA/NYSE TRF such that Participants' reporting volume stayed the same as it was in the first six months of 2021, under the proposed fee schedule, current Non-Retail Participants that have no trade reports would not see a change in their fee, but most Retail Participants would see fee increases. More specifically, currently there are three Retail Participants that will be impacted and would incur fee increases under the proposed rule change. Using December 2021 data, the two Retail Participants that were inactive, under the proposed fee change, would be assessed a fee of $2,000 for the month (compared to $0 under the current fee structure). The Retail Participant that was active in December 2021 would be assessed a fee of $1,779 for the month based on its reporting activity (compared to $0 under the current fee structure). The Business Member nonetheless believes that the proposed fee amendment is reasonable in light of the ongoing costs of operating and maintaining the FINRA/NYSE TRF and as a means of addressing the current losses.
Participants may potentially alter their trade reporting activity in response to the proposed rule change. Specifically, those Participants that would incur higher fees may refrain from reporting to the FINRA/NYSE TRF and may choose to report to another FINRA Facility. Alternatively, such firms may continue reporting or new firms may start reporting to the FINRA/NYSE TRF if they find that the proposed net cost of reporting and other functionalities provided represent the best value to their business.
The Business Member represents that the FINRA/NYSE TRF would continue to incur significant losses if the current fee and credit structure remained in place, and it does not believe that such losses are sustainable in the long run. Accordingly, it proposes to amend the fees set forth in FINRA Rule 7620B. By so doing, the Business Member has proposed a change that it believes will allow it to continue operating without amassing losses similar to those it currently has. The Business Member believes that its continued existence would be an asset to the competitive environment.
FINRA members can choose among four FINRA Facilities when reporting OTC trades in NMS stocks: The FINRA/NYSE TRF, the two FINRA/Nasdaq TRFs, or ADF. FINRA members can report their OTC trades in NMS stocks to a given FINRA Facility's competitors if they determine that the fees and credits of another FINRA Facility are more favorable, so long as they are participants of such other facility.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX”) is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to amend its Fee Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fee schedule for its equity options platform (“EDGX Options”) to adopt fees for Certification Logical Port fees, effective March 1, 2022.
By way of background, the Exchange offers a variety of logical ports, which provide users with the ability within the Exchange's System to accomplish a specific function through a connection, such as order entry, data receipt or access to information. Specifically, the Exchange offers Logical Ports,
Lastly, the Exchange does not intend to prorate Certification Logical Ports for the first month of service and intends to make this clear in the notes section under the Options Logical Port Fees section of the Fees Schedule.
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.
As noted above, the Exchange's certification environment provides a robust and realistic testing experience using a replica of the Exchange's production environment process configurations. This environment enables market participants to manage risk more effectively through testing software development changes in certification prior to implementing them in the live trading environment, thereby reducing the likelihood of a potentially disruptive system failure in the live trading environment, which has the potential to affect all market participants. As such, the Exchange believes it's reasonable to adopt a Certification Logical Port fee as it better enables the Exchange to continue to maintain and improve its testing environment, which the Exchange believes serves to improve live production trading on the Exchange. The Exchange also believes the proposed Certification Logical Port fee is reasonable because while such ports will no longer be completely free, Members and non-Members will continue to be entitled to receive free of charge one Certification Logical Port for each type of logical port that are currently offered in the production environment. Notably, the Exchange believes one Certification Logical Port per logical port type will be sufficient for most users and indeed anticipates that the majority of users will not purchase additional Certification Logical Ports. More specifically, while the Exchange has no way of predicting with certainty the impact of the proposed changes, it anticipates approximately 16% of Users to be assessed fees for Certification Logical Ports (
The Exchange believes the proposed fee is also equitable and not unfairly discriminatory because it applies uniformly to all market participants that choose to obtain additional Certification Logical Ports. The Exchange also believes the proposed fee is reasonable, equitable and not unfairly discriminatory because it is designed to encourage market participants to be efficient with their respective Certification Logical Port usage. Without some sort of fee for its Certification Logical Ports, the Exchange believes that Members and non-Members may be less efficient in testing their systems, potentially resulting in excessive time and resources being consumed by the
The Exchange does not believe that the proposed rule change will impose any burden on intramarket or intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition because as the proposed change applies uniformly to all market participants. Additionally, the Exchange does not believe that the proposed fee creates an undue burden on competition because the Exchange will continue to offer free of charge one Certification Logical Port per each logical port type offered in the production environment. Although the Exchange now proposes to charge users for additional Certification Logical Ports, the Exchange believes without some sort of fee assessed for excess Certification Logical Ports, Members and non-Members may be less efficient in testing their systems, potentially resulting in excessive time and resources being consumed by the Exchange and also potentially impacting the certification environment's capacity thresholds. The proposed fee structure therefore would ensure that market participants that pay the proposed fee are the ones that demand the most resources from the Exchange. Also as discussed, the purchase of additional ports is optional and based on the business needs of each market participant. Moreover, such market participants will continue to benefit from access to the certification environment, which the Exchange believes provides a robust and realistic testing experience via a replica of the production environment.
The Exchange does not believe that the proposed rule changes will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Particularly, the proposed change applies only to the Exchange's certification environment. Additionally, the Exchange notes that it operates in a highly competitive market. Members have numerous alternative venues that they may participate on and direct their order flow, including 15 other options exchanges, as well as off-exchange venues, where competitive products are available for trading. Indeed, participants can readily choose to send their orders to other exchange, and, additionally off-exchange venues, if they deem overall fee levels at those other venues to be more favorable. Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, 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.”
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send 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”),
Cboe BYX Exchange, Inc. (the “Exchange” or “BYX” or “BYX Equities”) is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to amend its Fee Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fees Schedule to adopt fees for Certification Logical Port fees, effective March 1, 2022.
By way of background, the Exchange offers a variety of logical ports, which provide users with the ability within the Exchange's System to accomplish a specific function through a connection, such as order entry, data receipt or access to information. Specifically, the Exchange offers Logical Ports,
Lastly, the Exchange does not intend to prorate Certification Logical Ports for the first month of service and intends to make this clear in the notes section under the Logical Port Fees section of the Fees Schedule.
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.
As noted above, the Exchange's certification environment provides a robust and realistic testing experience using a replica of the Exchange's production environment process configurations. This environment enables market participants to manage risk more effectively through testing software development changes in certification prior to implementing them in the live trading environment, thereby reducing the likelihood of a potentially disruptive system failure in the live trading environment, which has the potential to affect all market participants. As such, the Exchange believes it's reasonable to adopt a Certification Logical Port fee as it better enables the Exchange to continue to maintain and improve its testing environment, which the Exchange believes serves to improve live production trading on the Exchange. The Exchange also believes the proposed Certification Logical Port fee is reasonable because while such ports will no longer be completely free, Members and non-Members will continue to be entitled to receive free of charge one Certification Logical Port for each type of logical port that are currently offered in the production environment. Notably, the Exchange believes one Certification Logical Port per logical port type will be sufficient for most users and indeed anticipates that the majority of users will not purchase additional Certification Logical Ports. More specifically, while the Exchange has no way of predicting with certainty the impact of the proposed changes, it anticipates approximately 19% of Users to be assessed fees for Certification Logical Ports (
The Exchange believes the proposed fee is also equitable and not unfairly discriminatory because it applies uniformly to all market participants that choose to obtain additional Certification Logical Ports. The Exchange also believes the proposed fee is reasonable, equitable and not unfairly discriminatory because it is designed to encourage market participants to be efficient with their respective Certification Logical Port usage. Without some sort of fee for its Certification Logical Ports, the Exchange believes that Members and non-Members may be less efficient in testing their systems, potentially resulting in excessive time and resources being consumed by the Exchange in supporting testing and certifying Members and non-Members to the detriment of all market participants as Exchange resources are diverted away from other trading operations. Additionally, similar to its production environment, the Exchange's certification environment does not have unlimited system capacity to support unlimited testing. As such, the proposed fee structure also ensures that firms that use the most capacity pay for that capacity, rather than placing that burden on market participants that have more modest needs. The Exchange lastly believes that its proposed fee is aligned with the goals of the Commission in facilitating a competitive market for all firms that trade on the Exchange and of ensuring that critical market infrastructure has “levels of capacity, integrity, resiliency, availability, and security adequate to maintain their operational capability and promote the maintenance of fair and orderly markets.”
The Exchange does not believe that the proposed rule change will impose any burden on intramarket or intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition because as the proposed change applies uniformly to all market participants. Additionally, the Exchange does not believe that the proposed fee creates an undue burden on competition because the Exchange will continue to offer free of charge one Certification Logical Port per each logical port type offered in the production environment. Although the Exchange now proposes to charge users for additional Certification Logical Ports, the Exchange believes without some sort of fee assessed for excess Certification Logical Ports, Members and non-Members may be less efficient in testing their systems, potentially resulting in excessive time and resources being consumed by the Exchange and also potentially impacting
The Exchange does not believe that the proposed rule changes will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Particularly, the proposed change applies only to the Exchange's certification environment. Additionally, the Exchange notes that it operates in a highly competitive market. Members have numerous alternative venues that they may participate on and direct their order flow, including 15 other equities exchanges, as well as a number of alternative trading systems and other off-exchange venues, where competitive products are available for trading. Indeed, participants can readily choose to send their orders to other exchanges, and, additionally off-exchange venues, if they deem overall fee levels at those other venues to be more favorable. Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, 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.”
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send 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
Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX” or “EDGX Equities”) is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to amend its Fee Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fee schedule for its equities platform (“EDGX Equities”) to adopt fees for Certification Logical Port fees, effective March 1, 2022.
By way of background, the Exchange offers a variety of logical ports, which provide users with the ability within the Exchange's System to accomplish a specific function through a connection, such as order entry, data receipt or access to information. Specifically, the Exchange offers Logical Ports,
Lastly, the Exchange does not intend to prorate Certification Logical Ports for the first month of service and intends to make this clear in the notes section under the Logical Port Fees section of the Fees Schedule.
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.
As noted above, the Exchange's certification environment provides a robust and realistic testing experience using a replica of the Exchange's production environment process configurations. This environment enables market participants to manage risk more effectively through testing
The Exchange believes the proposed fee is also equitable and not unfairly discriminatory because it applies uniformly to all market participants that choose to obtain additional Certification Logical Ports. The Exchange also believes the proposed fee is reasonable, equitable and not unfairly discriminatory because it is designed to encourage market participants to be efficient with their respective Certification Logical Port usage. Without some sort of fee for its Certification Logical Ports, the Exchange believes that Members and non-Members may be less efficient in testing their systems, potentially resulting in excessive time and resources being consumed by the Exchange in supporting testing and certifying Members and non-Members to the detriment of all market participants as Exchange resources are diverted away from other trading operations. Additionally, similar to its production environment, the Exchange's certification environment does not have unlimited system capacity to support unlimited testing. As such, the proposed fee structure also ensures that firms that use the most capacity pay for that capacity, rather than placing that burden on market participants that have more modest needs. The Exchange lastly believes that its proposed fee is aligned with the goals of the Commission in facilitating a competitive market for all firms that trade on the Exchange and of ensuring that critical market infrastructure has “levels of capacity, integrity, resiliency, availability, and security adequate to maintain their operational capability and promote the maintenance of fair and orderly markets.”
The Exchange does not believe that the proposed rule change will impose any burden on intramarket or intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition because as the proposed change applies uniformly to all market participants. Additionally, the Exchange does not believe that the proposed fee creates an undue burden on competition because the Exchange will continue to offer free of charge one Certification Logical Port per each logical port type offered in the production environment. Although the Exchange now proposes to charge users for additional Certification Logical Ports, the Exchange believes without some sort of fee assessed for excess Certification Logical Ports, Members and non-Members may be less efficient in testing their systems, potentially resulting in excessive time and resources being consumed by the Exchange and also potentially impacting the certification environment's capacity thresholds. The proposed fee structure therefore would ensure that market participants that pay the proposed fee are the ones that demand the most resources from the Exchange. Also as discussed, the purchase of additional ports is optional and based on the business needs of each market participant. Moreover, such market participants will continue to benefit from access to the certification environment, which the Exchange believes provides a robust and realistic testing experience via a replica of the production environment.
The Exchange does not believe that the proposed rule changes will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. Particularly, the proposed change applies only to the Exchange's certification environment. Additionally, the Exchange notes that it operates in a highly competitive market. Members have numerous alternative venues that they may participate on and direct their order flow, including 15 other equities exchanges, as well as a number of alternative trading systems and other off-exchange venues, where competitive products are available for trading. Indeed, participants can readily choose to send their orders to other exchanges, and, additionally off-exchange venues, if they deem overall fee levels at those other venues to be more favorable. Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, 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.”
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 13, 2021, National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR–NSCC–2021–016 (the “Proposed Rule Change”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On January 26, 2022, pursuant to Section 19(b)(2) of the Act,
As described in the Notice, NSCC proposes to amend the Rules and Procedures (“Rules”) in order to (1) revise its capital requirements for Members and Limited Members (collectively, “members”), (2) streamline its two credit risk monitoring systems, Watch List and enhanced surveillance list, and (3) make certain other clarifying, technical, and
First, NSCC proposes to revise various aspects of its capital requirements for several types of members. NSCC proposes to increase minimum capital requirements for certain members. For example, for U.S. broker-dealers, the capital requirements would be determined using a tiered system based generally on the volatility component of a member's margin (referred to as the value-at-risk tier). NSCC also proposes to revise how it measures certain members' capital by incorporating common equity tier 1 capital, and the standards established in the capital adequacy rules and regulations of the Federal Deposit Insurance Corporation. NSCC would revise the reporting requirements concerning the capital requirements for certain members. In addition, for certain types of members who currently do not have specific amounts for their minimum capital requirements, the proposal would establish such a requirement.
Second, NSCC proposes to revise its Watch List and enhanced surveillance list, which are both currently used for credit risk monitoring. NSCC proposes to revise its Watch List and delete its enhanced surveillance list. NSCC also proposes to clarify that members on the Watch List are reported to NSCC's management committees and regularly reviewed by NSCC's senior management.
Third, NSCC proposes to (1) revise or add headings and sub-headings as appropriate, (2) revise defined terms and add appropriate defined terms to facilitate the proposed changes, (3) rearrange and consolidate paragraphs to promote readability, (4) fix typographical and other errors, and (5) other changes in order to improve clarity and the accessibility and transparency of the Rules.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
• Section 17A(b)(3)(F) of the Act,
• Section 17A(b)(3)(I) of the Act,
• Rule 17Ad–22(e)(18) under the Act,
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the Proposed Rule Change. In particular, the Commission invites the written views of interested persons concerning whether the Proposed Rule Change is consistent with Section 17A(b)(3)(F) of the Act,
Interested persons are invited to submit written data, views, and arguments regarding whether the Proposed Rule Change should be approved or disapproved by April 20, 2022. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by May 4, 2022.
The Commission asks that commenters address the sufficiency of NSCC's statements in support of the Proposed Rule Change, which are set forth in the Notice,
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its rules relating to the Continuing Education for Registered Persons as provided under Exchange Rule 3.33 and to amend related Registration Requirements as provided under Rule 3.30. 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 continuing education program for registered persons of broker-dealers (“CE Program”) currently requires registered persons to complete continuing education consisting of a Regulatory Element and a Firm Element. The Regulatory Element is delivered through a web-based delivery method called “CE Online,” which is administered through the Financial Industry Regulatory Authority, Inc. (“FINRA”) online continuing education system, and focuses on regulatory requirements and industry standards, while the Firm Element is provided by each firm and focuses on securities products, services and strategies the firm offers, firm policies and industry trends. The CE Program for registered persons is codified under Exchange Rule 3.33.
The Securities and Exchange Commission (the “SEC” or the “Commission”) recently approved a proposal submitted by FINRA relating to its CE Program.
Exchange Rule 3.33(a) currently requires a registered person to complete the applicable Regulatory Element initially within 120 days after the person's second registration anniversary date and, thereafter, within 120 days after every third registration anniversary date.
The Regulatory Element currently consists of a subprogram for registered persons generally, and a subprogram for principals and supervisors.
Rule 3.33(c) (Firm Element) currently requires each firm to develop and administer an annual Firm Element training program for covered registered persons.
Currently, individuals whose registrations as representatives or principals have been terminated for two or more years may reregister as representatives or principals only if they requalify by retaking and passing the applicable representative- or principal-level examination or if they obtain a waiver of such examination(s) (the “two-year qualification period”).
After extensive work with the Securities Industry/Regulatory Council on Continuing Education (“CE Council”), FINRA, other Self-Regulatory Organizations and industry participants, the Exchange proposes the following changes under Rules 3.30 and 3.33 to align with FINRA's Rule 1240.
As noted above, currently, the Regulatory Element generally must be completed every three years, and the content is broad in nature. Based on changes in technology and learning theory, the Regulatory Element content can be updated and delivered in a timelier fashion and tailored to each registration category, which would further the goals of the Regulatory Element.
Under the proposed rule change, TPHs and TPH organizations would have the flexibility to require their registered persons to complete the Regulatory Element sooner than December 31, which would allow TPHs and TPH organizations to coordinate the timing of the Regulatory Element with other training requirements, including the Firm Element.
Individuals who would be registering as a representative or principal for the first time on or after the implementation date of the proposed rule change would be required to complete their initial Regulatory Element for that registration category in the next calendar year following their registration.
Consistent with current requirements, individuals who fail to complete their Regulatory Element within the prescribed period would be automatically designated as CE inactive.
The Exchange also proposes amending Rule 3.33(a) to provide that: (1) Individuals who are designated as CE inactive would be required to complete all of their pending and upcoming annual Regulatory Element, including any annual Regulatory Element that becomes due during their CE inactive period, to return to active status;
Under the proposed rule change, the amount of content that registered persons would be required to complete in a three-year, annual cycle for a particular registration category is expected to be comparable to what most registered persons are currently completing every three years. In some years, there may be more required content for some registration categories depending on the volume of rule changes and regulatory issues. In addition, an individual who holds multiple registrations may be required to complete additional content compared to an individual who holds a single registration because, as noted above, individuals would be required to complete content specific to each registration category that they hold. However, individuals with multiple registrations would not be subject to duplicative regulatory content in any given year. The more common registration combinations would likely share much of their relevant regulatory content each year. For example, individuals registered as General Securities Representatives and General Securities Principals would receive the same content as individuals solely registered as General Securities Representatives, supplemented with a likely smaller amount of supervisory-specific content on the same topics. The less common registration combinations may result in less topic overlap and more content overall.
To better align the Firm Element requirement with other required training, the Exchange proposes to revise/adopt proposed Rule 3.33(b) to expressly allow TPHs and TPH organizations to consider training relating to the AML compliance program and the annual compliance meeting toward satisfying an individual's annual Firm Element requirement.
The Exchange proposes to adopt Rules 3.33(c), 3.33.01, and 3.33.02 to provide eligible individuals who terminate any of their representative or principal registrations the option of maintaining their qualification for any of the terminated registrations by completing continuing education. The proposed rule change would not eliminate the two-year qualification period. Rather, it would provide such individuals an alternative means of staying current on their regulatory and securities knowledge following the termination of a registration(s). Eligible individuals who elect not to participate in the proposed continuing education program would continue to be subject to the current two-year qualification period. The proposed rule change is generally aligned with other professional continuing education programs that allow individuals to maintain their qualification to work in their respective fields during a period of absence from their careers (including an absence of more than two years) by satisfying continuing education requirements for their credential.
The proposed rule change would impose the following conditions and limitations:
• Individuals would be required to be registered in the terminated registration category for at least one year immediately prior to the termination of that category;
• individuals could elect to participate when they terminate a registration or within two years from the termination of a registration;
• individuals would be required to complete annually all prescribed continuing education;
• individuals would have a maximum of five years in which to reregister;
• individuals who have been CE inactive for two consecutive years, or who become CE inactive for two consecutive years during their participation, would not be eligible to participate or continue;
• individuals who are subject to a statutory disqualification, or who become subject to a statutory disqualification following the termination of their registration or during their participation, would not be eligible to participate or continue.
The proposed rule change also includes a look-back provision that would, subject to specified conditions, extend the proposed option for maintaining qualifications following a registration category termination to (i) individuals who have been registered as a representative or principal within two years immediately prior to the planned March 15, 2022 implementation date of the proposed rule change, and (ii) individuals who have been FSAWP participants immediately prior to the planned March 15, 2022 implementation date of the proposed rule change.
In addition, the proposed rule change includes a re-eligibility provision that would allow individuals to regain eligibility to participate each time they reregister with a TPH or TPH Organization for a period of at least one year and subsequently terminate their registration, provided that they satisfy the other participation conditions and limitations.
Significantly, the proposed rule change will be of particular value to women, who continue to be the primary caregivers for children and aging family members and, as a result, are likely to be absent from the industry for longer periods.
The Exchange proposes to restructure and modify the rule text of Rule 3.33 to align with FINRA Rule 1240 numbering, provisions and rule text.
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 Exchange believes that the proposal to move to an annual Regulatory Element training with content tailored to an individual's representative or principal registration categories is designed to protect investors and is in the public interest. As noted in the order approving the similar changes to the FINRA CE Program,
The Exchange believes that the proposed changes to the Regulatory Element and Firm Element portions of its CE Program will ensure that all registered persons receive timely and relevant training, which will, in turn, enhance compliance and investor protection. Further, the Exchange believes that establishing a path for individuals to maintain their qualification following the termination of a registration will reduce unnecessary impediments to requalification and promote greater diversity and inclusion in the securities industry without diminishing investor protection.
The Exchange also believes that the proposed rule change will bring consistency and uniformity with FINRA's recently amended CE Program, which will, in turn, assist TPHs and their associated persons in complying with these rules and improve regulatory efficiency. The proposed rule changes makes ministerial changes to the Exchange's continuing education rules to align them with registration and qualification rules of FINRA and other exchanges as discussed above, in order to prevent unnecessary regulatory burdens and to promote efficient administration of the rules. The change also makes minor updates and corrections to the Exchange's rules which improve readability.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed rule changes which are, in all material respects, based upon and substantially similar to, recent rule changes adopted by FINRA, will reduce the regulatory burden placed on market participants engaged in trading activities across different markets. The Exchange believes that the harmonization of the CE Program requirements across the various markets will reduce burdens on competition by removing impediments to participation in the national market system and promoting competition among participants across the multiple national securities exchanges.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b–4(f)(6) normally does not become operative for 30 days after the date of filing. However, pursuant to Rule 19b–4(f)(6)(iii), the Commission may designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that this proposed rule change may become operative immediately upon filing. In addition, Rule 19b–4(f)(6)(iii)
Waiver of the 30-day operative delay would allow the Exchange to implement proposed changes to its Continuing Education Rules by March 15, 2022 to coincide with one of FINRA's announced implementation dates, thereby eliminating the possibility of a significant regulatory gap between the FINRA and Exchange rules, providing more uniform standards across the securities industry, and helping to avoid confusion for registered persons of the Exchange that are also FINRA members. For this reason, the Commission believes that waiver of the 30-day operative delay for this proposal is consistent with the protection of investors and the public interest. Accordingly, the Commission hereby waives the 30-day operative delay and designates the proposal operative upon filing.
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
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.
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–CBOE–2022–012 and should be submitted on or before April 20, 2022.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 24, 2022, the Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR–OCC–2022–001 (“Proposed Rule Change”) pursuant to Section 19(b) of the Securities Exchange Act of 1934 (“Exchange Act”)
Section 19(b)(2)(i) of the Exchange Act
The 45th day after publication of the Notice of Filing is March 28, 2022. In order to provide the Commission with sufficient time to consider the Proposed Rule Change, the Commission finds that it is appropriate to designate a longer period within which to take action on the Proposed Rule Change and therefore is extending this 45-day time period.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Exchange Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 13, 2021, The Depository Trust Company (“DTC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR–DTC–2021–017 (the “Proposed Rule Change”) pursuant to Section 19(b)(1) of the Securities
On January 26, 2022, pursuant to Section 19(b)(2) of the Act,
As described in the Notice, DTC proposes to amend its Rules, By-Laws and Organization Certificate (“Rules”) in order to (1) revise the capital requirements applicable to its participants, (2) streamline its two credit risk monitoring systems, Watch List and enhanced surveillance list, and (3) make certain other clarifying, technical, and supplementary changes to implement items (1) and (2).
First, DTC proposes to revise various aspects of its capital requirements for several types of participants. DTC proposes to increase minimum capital requirements for certain participants. DTC also proposes to revise how it measures certain participants' capital by incorporating common equity tier 1 capital and the standards established in the capital adequacy rules and regulations of the Federal Deposit Insurance Corporation. DTC would revise the reporting requirements concerning the capital requirements for certain participants. In addition, for certain types of participants who currently do not have specific amounts for their minimum capital requirements, the proposal would establish such a requirement.
Second, DTC proposes to revise its Watch List and enhanced surveillance list, which are both currently used to identify participants who would receive additional or enhanced credit risk monitoring. DTC proposes to revise its Watch List and delete its enhanced surveillance list. DTC also proposes to clarify that participants on the Watch List are reported to DTC's management committees and regularly reviewed by DTC's senior management.
Third, DTC proposes to (1) revise or add headings and sub-headings and renumbering sections as appropriate, (2) delete undefined terms and add appropriate defined terms to facilitate the proposed changes, (3) consolidate paragraphs to promote readability, (4) fix typographical and other errors, and (5) other changes in order to improve the accessibility and transparency of the Rules.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
• Section 17A(b)(3)(F) of the Act,
• Section 17A(b)(3)(I) of the Act,
• Rule 17Ad–22(e)(18) under the Act,
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the Proposed Rule Change. In particular, the Commission invites the written views of interested persons concerning whether the Proposed Rule Change is consistent with Section 17A(b)(3)(F) of the Act,
Interested persons are invited to submit written data, views, and arguments regarding whether the Proposed Rule Change should be approved or disapproved by April 20, 2022. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by May 4, 2022.
The Commission asks that commenters address the sufficiency of DTC's statements in support of the Proposed Rule Change, which are set forth in the Notice,
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
Notice of open Federal Advisory committee meeting.
The SBA is issuing this notice to announce the date, time and agenda for a meeting of the National Small Business Development Center Advisory Board. The meeting will be open to the public; however, advance notice of attendance is required.
Tuesday, April 19, 2022 at 2 p.m. EST.
Meeting will be held via Microsoft Teams.
Rachel Karton, Office of Small Business Development Centers, U.S. Small Business Administration, 409 Third Street SW, Washington, DC 20416;
Pursuant to section 10(a) of the Federal Advisory Committee Act (5 U.S.C. Appendix 2), the SBA announces the meetings of the National SBDC Advisory Board. This Board provides advice and counsel to the SBA Administrator and Associate Administrator for Small Business Development Centers.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104–13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes one new, and one revision of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
(SSA) Social Security Administration, OLCA, Attn: Reports Clearance Director, 3100 West High Rise, 6401 Security Blvd., Baltimore, MD 21235, Fax: 410–966–2830, Email address:
Or you may submit your comments online through
I. The information collection below is pending at SSA. SSA will submit it to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than May 31, 2022. Individuals can obtain copies of the collection instrument by writing to the above email address.
The Social Security Administration's (SSA's) Social Security Disability Insurance (SSDI) program provides crucial financial support to individuals unable to work due to a medical condition. Having access to and understanding information about SSDI among working adults is an important factor in connecting people with benefits. The purpose of the survey to is understand the type of information working adults currently have about the SSDI program to improve projections of disability applications and incidence.
SSA is requesting clearance to administer the Disability Perception Survey (DPS) to a sample of working age adult SSDI program recipients, and those who may qualify for this benefit, to capture attitudes and perceptions about SSDI among working-age adults in the general population, and to
The DPS evaluation will consist of two parts: (1) The DPS survey administered to working-age adults (18 to 64 years of age) SSDI program recipients, and those who may qualify for SSDI benefits; and (2) links of the survey data, including the individuals' social security numbers, to individuals' administrative records for research purpose. SSA will use the data the DPS collects to learn about the average American SSDI adult recipient's knowledge and understanding of the SSDI program and about who qualifies for these benefits. Section 1110(a) of the Social Security Act (Act) gives the Commissioner of Social Security authorization to help fund research or demonstration projects relating to the prevention and reduction of dependency. SSA contracted with NORC at the University of Chicago to conduct the DPS data collection.
The DPS survey will focus on a series of multiple-choice, open-ended, and vignette-style questions across five topic areas:
• General knowledge about the SSDI program, including perspectives on the causes of disability, eligibility requirements, the likelihood of receiving benefits, and the documentation required to apply for the program;
• Perceptions about the impact of work-limiting impairments—including how and to what degree people with disabilities participate in the workforce, their work outcomes, use of services, barriers to work, and knowledge about Social Security Administration (SSA) programs designed to help beneficiaries find and keep jobs;
• Thoughts about SSDI based on personal experience or associations with SSDI beneficiaries and others, the likelihood of receiving benefits due to changes in one's personal health status, the impact of reduced financial resources, and factors considered when deciding whether to apply for SSDI;
• Opinions and reactions to how impairments described in brief vignettes of work-limiting and disabling experiences may affect current or future employment; and
• The impact of the COVID–19 pandemic on employment or participation in SSDI or other safety net programs.
The DPS is targeting 5,011 completed interviews among 18–64 year old adults across the U.S. population.
NORC will sample respondents for the study through NORC's AmeriSpeak sampling frame. AmeriSpeak uses a multi-stage probability sample that fully represents the U.S. household population. NORC uses a two-stage process for AmeriSpeak panel recruitment:
•
•
Eligibility criteria include those ages 18–64 years old who understand English or Spanish, and who have the ability to provide informed consent as well as a Social Security Number.
Participants in the DPS will receive the Informed Consent as part of the first screens of the survey. If NORC conducts the survey by telephone, the interviewer will review the main points on the consent with the participant. The Informed Consent, whether online or read by the interviewer, will include:
• The purpose of the survey and the primary topics addressed in the survey questions;
• The information that the respondents may withdraw at any time;
• The voluntary nature of the study;
• A statement that the information collected is completely confidential and will not be used by SSA for the purposes of determining eligibility for benefits, nor for purposes other than research or program evaluation;
• The approximate time it will take to complete the survey;
• The incentive amount for participation, and how the respondent will receive their incentive;
• Information on who to call if they have questions about their rights as a survey participants;
If the respondents give their informed consent, but cannot provide their SSN, the survey will end, and the respondent will not continue further. Survey participants will receive $20 as reimbursement for completing the DPS.
Following the emailing of the survey URL, NORC will follow up 10 times over the course of a 32-week field period to remind respondents to complete the survey. NORC will send the participants reminder scripts both by email and text messages to complete the survey. NORC will also send reminders by mail, via a reminder letter and postcard. The respondents are working adults (age 18–64) SSDI program recipients, and those who may qualify for SSDI benefits for SSDI benefits.
During the recent COVID–19 pandemic, SSA conducted its services almost exclusively online or by telephone, to protect the health of both the public and our employees. We took these measures in accordance with relevant Centers for Disease Control COVID–19 pandemic guidance, and to comply with existing Occupational Safety and Health Act provisions regarding workplace safety.
While in-person hearings have not been available since March 2020, claimants or their appointed representatives who wished to appeal a redetermination could choose to participate in an online video hearing or phone hearing instead. In addition, SSA also restricted in-person field office visits to limited appointments only, with prioritization of requests for new Social Security Number cards. During this period, we used the initial version of the CDC-suggested COVID–19 screening symptoms questionnaire with people who had these limited field office appointments.
We made the questionnaire available for in-office visits via telephone or SSA mobile application (VIPr App). We required satisfactory answers to the screening questions,
We are resuming in-person hearings and field office visits on a limited-capacity basis. Initially, we plan to keep the number of in-person hearings to an average of three separate hearings per hearings office per day, to ensure the continued health and safety of the public and SSA employees. We also plan to keep the number of in-person field office visits to a limited number, based on the capacity of each field office, but hope to also allow for walk-ins, as we expand our plans for reentry. We may revise the number of in-person hearings per hearing office or reassess our capacity per field office for in-person visits, over the course of reentry; therefore, our information for the public and the unions make it clear that the screener questions are subject to revision as workplace safety guidance changes.
Because of COVID–19 health and safety considerations, we plan to continue requiring all members of the public entering an SSA field office for a visit, or a hearing office to participate in an in-person hearing, to complete a brief screener questionnaire designed to identify COVID–19 symptoms.
For individuals visiting a hearings office, we may provide a link to the screener questionnaire in the mailed notice of scheduled hearings. People participating in a hearing can complete and submit the questionnaire online within 24 hours before the start of the hearing. If hearings participants do not wish to use the internet, they can call the hearings office where the hearing is scheduled and complete the questionnaire over the phone.
Similarly, we may give field office visitors the option of completing the screener questionnaire through SSA's mobile application, VIPr, prior to entering the building. We also have a poster in our field office windows visible from the outside instructing visitors about the need to complete the screening questionnaire and about our masking policies. We will continue to request satisfactory completion of the screener in advance of entering the building as a prerequisite for entering the field office.
SSA's screener questionnaire asks questions relating to personal experience of any COVID symptoms; exposure to someone diagnosed with COVID; or travel by means other than land travel, such as car, bus, ferry, or train. SSA uses the screener responses to determine if the participant is “cleared” or “not cleared” to enter an SSA field or hearing office. If participants answer “no” to all questions, they are “cleared” to participate. If they answer “yes” to any part of the screener, they will be considered “not cleared.” Individuals who are not cleared may request SSA to provide an alternative service method or reschedule their visit.
Although we will continue to require completion of the screener questionnaire any in-person hearing or field office visit, we do not require this screener questionnaire for other modalities of appeals hearings, or field office services. One may choose an online video hearing or telephone hearing as an alternative to an in-person hearing, just as we also have online and telephone services for field office transactions. Claimants may obtain Social Security payments regardless of the hearing method they choose, and field office visitors may submit their documentation using our internet services, telephone requests, or by mailing their documentation to SSA.
The respondents are beneficiaries or applicants requesting an in-person hearing, or members of the public entering a field office.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104–13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
(OMB), Office of Management and Budget, Attn: Desk Officer for SSA, Comments:
(SSA), Social Security Administration, OLCA, Attn: Reports Clearance Director, 3100 West High Rise, 6401 Security Blvd., Baltimore, MD 21235, Fax: 410–966–2830, Email address:
Or you may submit your comments online through
I. The information collections below are pending at SSA. SSA will submit them to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than May 31, 2022. Individuals can obtain copies of the collection instruments by writing to the above email address.
1. Application for Widow's or Widower's Insurance Benefits—20 CFR 404.335–404.338, & 404.603—0960–0004. Section 2029(e) and 202(f) of the Social Security Act (Act) set forth the requirements for entitlement to widow(er)'s benefits, including the requirements to file an application. For SSA to make a formal determination for entitlement to widow(er)'s benefits, we use Form SSA–10 to determine whether an applicant meets the statutory and regulatory conditions for entitlement to widow(er)'s Title II benefits. SSA employees interview individuals applying for benefits either face-to-face or via telephone, and enter the information on the paper form or into the Modernized Claims System (MCS). The respondents are applicants for widow(er)'s benefits.
2. Request to be Selected as a Payee—20 CFR 404.2010–404.2055, and 416.601–416.665—0960–0014. SSA requires an individual applying to be a representative payee for a Social Security beneficiary or Supplemental Security Income (SSI) recipient to complete Form SSA–11–BK, or supply the same information to a field office
3. Statement for Determining Continuing Eligibility for Supplemental Security Income Payment—20 CFR 416.204—0960–0145. SSA uses Form SSA–8202–BK to conduct low and middle-error profile (LEP/MEP) telephone, or face-to-face redetermination interviews with SSI recipients and representative payees, if applicable. SSA conducts LEP redeterminations interviews on a 6-year cycle, and MEP redeterminations annually. SSA requires the information we collect during the interview to determine whether: (1) SSI recipients met, and continue to meet, all statutory and regulatory requirements for SSI eligibility; and (2) the SSI recipients received, and are still receiving, the correct payment amounts. This information includes non-medical eligibility factors such as income, resources, and living arrangements. To complete Form SSA–8202–BK, the respondents may need to obtain information from employers or financial institutions. The respondents are SSI recipients and their representatives, if applicable.
4. Application for Supplemental Security Income—20 CFR 416.305–416.335, Subpart C—0960–0444. SSA uses Form SSA–8001–BK to determine an applicant's eligibility for SSI and SSI payment amounts. SSA employees also collect this information during interviews with members of the public who wish to file for SSI. SSA uses the
5. Employer Verification of Records for Children Under Age 7—20 CFR 404.801–404.803, and 404.821–404.822—0960–0505. To ensure we credit the correct person with the reported earnings, SSA verifies wage reports for children under age seven with the children's employers before posting to the earnings record. SSA uses form SSA–L3231, Request for Employer Information for this purpose. SSA technicians mail the form to the employer(s) and request they complete it and mail it back to the appropriate processing center. The respondents are employers who report earnings for children under age seven.
6. Wage Reports and Pension Information—20 CFR 422.122(b)—0960–0547. Pension plan administrators annually file plan information with the Internal Revenue Service, which then forwards the information to SSA. SSA maintains and organizes this information by plan number, plan participant's name, and Social Security number. Per Section 1131(a) of the Act, pension plan participants are entitled to request this information from SSA. The Wage Reports and Pension Information regulation, 20 CFR 422.122(b) of the Code of Federal Regulations, stipulates that before SSA disseminates this information, the requestor must first submit a written request with identifying information to SSA. The respondents are requestors of pension plan information.
7. Centenarian and Medicare Non-Utilization Project Development Worksheets: Face-to-Face Interview and Telephone Interview—20 CFR 416.204(b) and 422.135—0960–0780. SSA conducts interviews with centenary Title II beneficiaries and Title XVI recipients, and Medicare Non-Utilization Project (MNUP) beneficiaries age 90 and older to: (1) Assess if the beneficiaries are still living; (2) prevent fraud through identity misrepresentation; and (3) evaluate the well-being of the recipients to determine if they need a representative payee, or a change in representative payee. SSA field office personnel obtain the information through one-time, in-person interviews with the centenarians and MNUP beneficiaries, who are those Title II beneficiaries ages 90–99, who show non-utilization of Medicare benefits for an extended period and the absence of private insurance, health maintenance organization, or nursing home, which are all indicators that an individual may be deceased. If the centenarians and MNUP beneficiaries have representatives or caregivers, SSA personnel invite them to the interviews. During these interviews, SSA employees make overall observations of the centenarians, MNUP beneficiaries, and their representative payees (if applicable). The interviewer uses the appropriate Development Worksheet as a guide for the interview, in addition to documenting findings during the interview. SSA conducts the interviews either over the telephone or through a face-to-face discussion with the respondents either in a field office, or at the Centenarian or MNUP beneficiary's residence. Respondents are MNUP and Centenarian beneficiaries, and their representative payees, or their caregivers.
II. SSA submitted the information collections below to OMB for clearance. Your comments regarding these information collections would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than April 29, 2022. Individuals can obtain copies of these OMB clearance packages by writing to
Farm Self-Employment Questionnaire—20 CFR 404.1082(c) & 404.1095—0960–0061. SSA collects the information on Form SSA–7156 on a voluntary and as-needed basis to determine the existence of an agriculture trade or business which may affect the monthly benefit, or insured status, of the applicant. SSA requires the existence of a trade or business before determining if an individual or partnership has net earnings from self-employment. When an applicant indicates self-employment as a farmer, SSA uses the SSA–7165 to obtain the information we need to determine the existence of an agricultural trade or business, and subsequent covered earnings for Social Security entitlement purposes. As part of the application process, we conduct a personal interview, either face-to-face or via telephone, and document the interview using Form SSA–7165. We also allow applicants to complete a fillable version of the form available on our website, which they can complete, print, and sign. The respondents are applicants for Social Security benefits whose entitlement depends on whether the worker received covered earnings from self-employment as a farmer.
Federal Aviation Administration, Department of Transportation.
Notice of public meeting.
This notice announces a meeting of the Research, Engineering, and Development Advisory Committee (REDAC).
The meeting will be held on April 14, 2022, from 10:00 a.m.–5:00 p.m. EST.
Requests for accommodations to a disability must be received by March 31, 2022. Individuals requesting to speak during the meeting must submit a written copy of their remarks to DOT by March 31, 2022. Requests to submit written materials to be reviewed during the meeting must be received no later than March 31, 2022.
The meeting will be held virtually. Virtual attendance information will be provided upon registration. A detailed agenda will be available on the REDAC internet website at
Chinita Roundtree-Coleman, REDAC PM/Lead, FAA/U.S. Department of Transportation, at
The Research, Engineering, and Development Advisory Committee was created under the Federal Advisory Committee Act (FACA), in accordance with Public Law 100–591 (1988) and Public Law 101–508 (1990) to provide advice and recommendations to the FAA Administrator in support of the Agency's Research and Development (R&D) portfolio.
At the meeting, the agenda will cover the following topics:
• FAA Research and Development Strategies, Initiatives and Planning,
• Impacts of emerging technologies, new entrant vehicles, and dynamic operations within the National Airspace System.
The U.S. Department of Transportation is committed to providing equal access to this meeting for all participants. If you need alternative formats or services because of a disability, such as sign language, interpretation, or other ancillary aids, please contact the person listed in the
There will be 45 minutes allotted for oral comments from members of the public joining the meeting. To accommodate as many speakers as possible, the time for each commenter may be limited. Individuals wishing to reserve speaking time during the meeting must submit a request at the time of registration, as well as the name, address, and organizational affiliation of the proposed speaker. If the number of registrants requesting to make statements is greater than can be reasonably accommodated during the meeting, the FAA may conduct a lottery to determine the speakers. Speakers are requested to submit a written copy of their prepared remarks for inclusion in the meeting records and circulation to REDAC members before the deadline listed in the
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice.
FRA, on behalf of the California High-Speed Rail Authority (Authority), is issuing this notice to announce actions taken by the Authority that are final. By this notice, FRA is advising the public of the time limit to file a claim seeking judicial review of the actions. The actions relate to the California High-Speed Rail Burbank to Los Angeles Project Section (Project). These actions grant approvals for project implementation pursuant to the National Environmental Policy Act (NEPA) and other laws, regulations, and executive orders.
A claim seeking judicial review of the agency actions on the Project will be barred unless the claim is filed on or before March 29, 2024. If Federal law later authorizes a time period of less than 2 years for filing such claim, then that shorter time period applies.
Effective July 23, 2019, FRA assigned, and the State of California acting through the Authority assumed, environmental responsibilities for the California High-Speed Rail (HSR) System pursuant to 23 U.S.C. 327. Notice is given that the Authority has taken final agency actions subject to 23 U.S.C. 139(
The purpose of the California HSR System
This notice applies to the ROD, Final EIS, and all other Federal agency decisions with respect to the Project as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
1. NEPA;
2. Council on Environmental Quality regulations (1978);
3. Fixing America's Surface Transportation Act (FAST Act);
4. Department of Transportation Act of 1966, Section 4(f);
5. Land and Water Conservation Fund (LWCF) Act of 1965, Section 6(f);
6. Clean Air Act Amendments of 1990;
7. Clean Water Act of 1977 and 1987;
8. Endangered Species Act of 1973;
9. Migratory Bird Treaty Act;
10. National Historic Preservation Act of 1966, as amended;
11. Executive Order 11990, Protection of Wetlands;
12. Executive Order 11988, Floodplain Management;
13. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations;
14. Executive Order 13112, Invasive Species.
Issued in Washington, DC.
Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).
Notice.
FRA is providing this notice to advise the public that it is issuing a Final General Conformity Determination (FCD) for the San Jose to Merced Section of the California High-Speed Rail (HSR) System.
Andréa Martin, Senior Environmental Protection Specialist, Office of Railroad Policy and Development (RPD), telephone: (202) 493–6201, email:
Pursuant to 23 U.S.C. 327 (Section 327), the California High-Speed Rail Authority (CHSRA or Authority) has assumed FRA's environmental review responsibilities under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
FRA prepared a Draft General Conformity Determination, pursuant to 40 CFR part 93, subpart B, which establishes the process for complying with the General Conformity requirements of the Clean Air Act. FRA published a notice in the
FRA prepared the Final General Conformity Determination pursuant to 40 CFR part 93 Subpart B, and based on the Authority's coordination with the U.S. Environmental Protection Agency (EPA), Bay Area Air Quality Management District (BAAQMD), San Joaquin Valley Air Pollution Control District (SJVAPCD), and the California Air Resources Board (CARB). The analysis found that construction period emissions would exceed the General Conformity
The Final General Conformity Determination is available at
Issued in Washington, DC.
Maritime Administration, Department of Transportation
Notice and request for comments.
After consulting with operators of commercial vessels and other Sea Year stakeholders, on December 15, 2021, the Maritime Administration (MARAD) released on its website agency guidance entitled
Comments must be received on or before May 31, 2022. MARAD will consider comments filed after this date to the extent practicable.
You may submit comments identified by DOT Docket Number MARAD–2022–0057 by any one of the following methods:
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•
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Chris Wahler, Director of Maritime Labor and Training, (202) 366–5469 or via email at
EMBARC is comprised of SASH prevention and response policies and procedures, a Self-Assessment Check List, and a Statement of Compliance. In this notice, MARAD has published the SASH policies, procedures, and standards for public review. The Self-Assessment Check List, Statement of Compliance, and Frequently Asked Questions (FAQs) are also available for review on the docket. Please feel free to provide any comments on those documents as well.
As a prerequisite to graduation from the USMMA, cadets must obtain training at sea. This training is required before a cadet may obtain a U.S. Coast Guard (USCG) license for an unlimited deck or engineering credential—also a prerequisite for graduation. The U.S. Department of Transportation (DOT) has stated that all commercial vessel operators that carry USMMA cadets should adopt and follow EMBARC—a set of standards and procedures to help prevent and respond to incidents of SASH. EMBARC is also intended to guide the provision of appropriate support to survivors of sexual assault and sexual harassment and other forms of misconduct. As a prerequisite to employing USMMA midshipmen as cadets aboard their vessels, MARAD expects commercial vessel operators to evidence implementation of EMBARC and to sign the EMBARC Statement of Compliance.
The EMBARC standards replace earlier commitments made by vessel operators to comply with Sea Year eligibility requirements previously established by MARAD's Shipboard Climate Compliance Team (SCCT). EMBARC standards apply to owners and operators of vessels subject to the International Convention for Safety of Life at Sea 1974 (SOLAS). However, MARAD seeks comments and recommendations related to applying EMBARC, or substantially similar standards to vessels not subject to the Convention. We may amend EMBARC so that it will apply to vessels not required to comply with SOLAS, or we may establish alternative criteria for such vessels to carry USMMA cadets.
DOT, MARAD, and the USMMA are committed to ongoing evaluation and improvement of EMBARC and will incorporate best and promising practices and engage with stakeholders to further strengthen MARAD's EMBARC guidance. Current EMBARC materials, including frequently asked questions (FAQs), are maintained and available to the public on MARAD's website at
Prior to the issuance of MARAD's EMBARC guidance on December 15, 2021, MARAD, USMMA, and DOT officials heard from stakeholders both internal and external to the U.S. Government. DOT and MARAD staff visited the USMMA to hear directly from midshipmen, staff, USMMA alumni, and community members in roundtable-format and small group meetings. MARAD, USMMA, and DOT officials also met with the U.S. Coast Guard (USCG), the U.S. Department of Education, Members and staff of the U.S. Congress, representatives from maritime labor, ship owners and operators, SMA leaders, and seafarers. Additional interested parties consulted included maritime workforce associations and non-maritime organizations with expertise in sexual assault and sexual harassment response and survivor support. MARAD also held a public workshop to hear from interested stakeholders and members of the public. This series of meetings took place from September through mid-December 2021.
At these meetings, MARAD and DOT received stakeholders' individual comments and recommendations on policies and procedures that could help strengthen safety for cadets embarked at
Following these meetings, MARAD, USMMA, and DOT developed principles to guide the development of new criteria that would be applied to commercial vessel operators that train USMMA cadets. These principles formed the basis for the EMBARC “Core Tenets” on which MARAD seeks comments.
1. Build and maintain a shipboard culture of inclusion and respect.
2. Establish zero tolerance policies for SASH, harassment, and hostile work environment, as well as zero tolerance for retaliation against anyone who reports assault or harassment.
3. Eliminate the barriers that survivors and bystanders face in reporting SASH incidents.
4. Support survivors and bystanders who report SASH incidents.
5. Promptly address any report of behavior that is inconsistent with EMBARC standards, using every available resource.
6. Provide for a comprehensive review of all company and vessel policies and procedures to ensure that they fully support a work environment in which assault and harassment in any form—and retaliation against those who report assault or harassment—are not tolerated.
7. Provide for the proper implementation of cadet safety standards and ensure the adoption of updates as they are promulgated by MARAD.
8. Incorporate SASH prevention, response, and reporting procedures into the Company and Vessel Safety Management Systems.
Consistent with these principles, MARAD, DOT, and the USMMA sought individual input on a draft version of the
• Ensure that all standards that are immediately applicable to carriers are implemented before cadets are embarked;
• clarify the training requirements—including the frequency of training—for crew members and for cadets;
• not designate the Designated Person Ashore—a position identified under the SOLAS convention—as a carrier's SASH contact for cadets;
• clarify the communications procedures between a carrier's SASH contact and cadets;
• clarify the training requirements for carriers' SASH contacts; and
• delay certain proposed requirements that may require vessels to be unavailable for service.
On December 15, 2021, MARAD released on its website the EMBARC Standards and Self-Assessment Check List on which comments are now sought. MARAD has continued to meet with stakeholders to clarify EMBARC requirements and receive comments. For example, MARAD and USMMA met with representatives of the SMAs, vessel owners and operators, and maritime labor on January 27, 2022, to clarify EMBARC check list items and hear stakeholders' individual comments and concerns regarding EMBARC. MARAD also released a “Frequently Asked Questions” (FAQ) on its website on February 8, 2022.
Consistent with its commitment to continuous review and improvement of EMBARC and continuing its extensive outreach to stakeholders, MARAD believes that this notice with request for comments will further improve its EMBARC agency guidance.
MARAD is interested in learning how EMBARC could be improved, while also ensuring comprehensive support and adoption by the maritime industry and other stakeholders. Accordingly, MARAD specifically seeks comment on the following: (1) Any areas of sexual assault and sexual harassment prevention and response not properly addressed or accounted for in the EMBARC guidance; (2) any method MARAD could employ that would assist with oversight of, and compliance with, EMBARC; and, (3) other policies, procedures, or programs MARAD should consider to help ensure the safety and security of mariner cadets.
MARAD also seeks comment on the application of EMBARC, or standards similar to EMBARC, to owners or operators of vessels other than commercial carriers that must comply with SOLAS. Such other owners or operators include state and local governments, state maritime academies (SMA), and Great Lakes commercial vessel operators. Application to the SMAs would include the SMAs as operators of vessels upon which USMMA cadets receive training, and the SMAs as institutions of higher education that place their cadets on commercial vessels would be required to meet Coast Guard licensing requirements.
In making your comments, direct experience and quantifiable data are more useful than anecdotal descriptions. Likewise, if a commenter believes that there is a more effective alternative, the commenter should describe that alternative in verifiable detail.
We are providing a 60-day comment period.
Your comments must be written in English.
To ensure that your comments are correctly filed in the Docket, please include the docket number shown at the beginning of this document in your comments.
If you are submitting comments electronically as a PDF (Adobe) File, MARAD asks that the documents be submitted using the Optical Character Recognition (OCR) process, thus allowing MARAD to search and copy certain portions of your submissions. Comments may be submitted to the docket electronically at
You may also submit two copies of your comments, including the attachments, to Docket Management at the address given above under
Please note that pursuant to the Data Quality Act, for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at
Yes, MARAD encourages any member of the public to submit relevant comments for the docket, including input that has previously been communicated to MARAD. Doing so will ensure that your comments are considered in the development of future policies and MARAD response to your concerns.
If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
Confidential business information (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 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 notice, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission that constitutes CBI as “PROPIN” to indicate it contains proprietary information. MARAD will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket. Submissions containing PROPIN should be sent to the email address provided in the
MARAD will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under
You may read the comments received by Docket Management at the address given above under
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT”s compliance with the Privacy Act, please visit
In developing the policies, procedures, standards and definitions in EMBARC, MARAD relied on authorities including: 46 U.S.C. 10104; 46 U.S.C. 51318; Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e; U.S. Equal Employment Opportunity Commission Guidance; Title IX of the Education Amendments of 1972, 20 U.S.C. 1681; U.S. Department of Education, Office for Civil Rights Guidance; Best Practices Guide on Prevention of Sexual Harassment & Sexual Assault in the U.S. Merchant Marine (SOCP BPG); Ship Operations Cooperative Program (SOCP), June 2017; and USMMA Superintendent Instruction 2018–04 Sexual Assault, Sexual or Gender-Based Harassment, Relationship Violence, Stalking and Retaliation Policy. MARAD seeks comment and suggestions for improvement from interested members of the public on all elements of EMBARC posted on its website at
The mission of the United States Merchant Marine Academy (USMMA) is to educate and graduate leaders of exemplary character who are inspired to serve the national security, marine transportation, and economic needs of the United States. As USMMA educates and trains the next generation of leaders, it is committed to ensuring that all members of the Academy community learn and work in safe and supportive environments.
Realizing these goals depend on fostering a community of mutual respect, support, and accountability. Accordingly, the U.S. Department of Transportation (DOT), Maritime Administration (MARAD), and USMMA require all commercial vessel owners and operators that participate in USMMA cadet training to adopt and follow the Every Mariner Builds a Respectful Culture (EMBARC) Sexual Assault and Sexual Harassment (SASH) Prevention Mandatory Standards (EMBARC Standards)—a set of policies, programs, procedures, and practices to help strengthen a culture of SASH prevention and support appropriate responses to incidents of sexual violence and sexual harassment and other forms of misconduct—and complete enrollment before embarking any cadet.
The policies, procedures, and culture of DOT, MARAD, and USMMA must support effective implementation of the standards outlined in EMBARC. Therefore, DOT, MARAD, and USMMA are revising policies and procedures for Sea Year to enable midshipmen to safely obtain the sea time needed to qualify them to sit for their licensing examinations. Specific policies and procedures already under development are described in more detail below.
DOT, MARAD, and USMMA are committed to ongoing evaluation and improvement of the EMBARC standards to incorporate emerging best practices and will engage closely and regularly with USMMA cadets and other stakeholders to assess implementation and discuss options to further strengthen the EMBARC program. Similarly, DOT, MARAD, and USMMA will continue to evaluate and strengthen USMMA's policies and procedures regarding implementation of Sea Year, including closely and regularly engaging with USMMA cadets and other stakeholders regarding the design and implementation of these policies and procedures.
The following Core Tenets frame all aspects of the implementation of Sea Year at USMMA:
• Build and maintain a shipboard culture of inclusion and respect.
• Establish
• Eliminate the barriers that survivors, witnesses, and bystanders face in reporting SASH incidents.
• Support survivors, witnesses, and bystanders who report SASH incidents.
• Promptly address any report of behavior that is inconsistent with EMBARC Standards, using every available resource.
• Review all company and vessel policies and procedures to ensure such policies fully support a work environment in which assault, harassment, and retaliation against those who report assault or harassment—are not tolerated.
• Implement SASH best practices and commit to adopting updates when such practices are promulgated by MARAD. (See
• Incorporate SASH prevention, response, and reporting procedures into the Company and Vessel Safety Management Systems.
To help support a safe and supportive learning environment for every cadet during Sea Year and on the USMMA campus, DOT, MARAD, and USMMA will continue to review and revise policies and procedures to strengthen safety; support a culture of SASH prevention and appropriate response to any type of SASH-involved behavior, bullying, or hostile work environment; and support an inclusive culture—including by seeking guidance from outside experts. As first steps, DOT, MARAD, and USMMA will do the following:
• Develop a Superintendent Instruction on Sea Year policy that includes the following:
○ A Sea Year Assignment Policy detailing how Sea Year assignments are made. The revised policy will formalize the practice of assigning two or more cadets to each ship participating in Sea Year. The policy will also formalize the process for removing cadets from ships after reporting a SASH incident or for any other reason (such as illness, family emergency, etc.), including making clear that USMMA will work with students who leave ships to ensure that they are able to obtain required sea time with minimal disruption to academic progress.
○ Procedures for Handling Restricted (confidential) and Unrestricted (not confidential) reports of SASH, gender-based harassment, relationship violence, and stalking at sea, including:
Explicit definitions of these behaviors;
description of the roles of the parties including shipboard training personnel and Sexual Assault Prevention and Response staff (SAPR), such as victim advocates; and
support resources for survivors, witnesses, and bystanders.
○ A new Amnesty Policy for survivors, witnesses, and bystanders issued earlier this month.
○ Procedures for the use of satellite phones and satellite texting devices at sea. These devices enhance cadet safety and well-being by allowing immediate contact with authorized representatives of the SAPR Office and other Academy personnel as well as a cadet's family, friends, and support networks.
○ Procedures for the training and credentialing of victim advocates who can provide crisis intervention, referrals, and ongoing non-clinical support to survivors of sexual assault, sexual or gender-based harassment, relationship violence, or stalking.
○ A Midshipmen Sea Year Mentorship Program to ensure that first time sailors (sophomores or Midshipmen Third Class) will be connected in advance of their first Sea Year assignment to a senior Midshipman mentor. The senior Midshipman mentor will be available to provide insight into all aspects of Sea Year sailing and to answer questions as needed. Mentors will immediately refer any SASH concerns to the SAPR office.
• Update the USMMA Sea Year Guide to ensure that it incorporates all revised SASH reporting policies and procedures outlined in the Superintendent Instruction, as well as the EMBARC program requirements. The Sea Year Guide will be focused on supporting USMMA cadets.
• Provide Midshipmen with a pocket guide detailing how to make restricted and unrestricted reports of SASH.
• Strengthen the SAPR Office, including creating and staffing a new Director position for the Office and adding staff positions to expand response capabilities and better support training and prevention efforts across the USMMA community.
• Continue to Coordinate with the U.S. Coast Guard, which is the regulator of the maritime industry and provides law enforcement at sea, to champion broader changes across the industry, including by supporting efforts to strengthen regulatory requirements regarding the reporting of sexual harassment and predatory behavior, where authorized by law.
To ensure effective support and oversight of USMMA efforts, DOT and MARAD will:
• Develop an EMBARC Compliance Review Process: As soon as practicable, MARAD will stand up a new office to review vessel compliance with EMBARC and USMMA policy and procedures. Once staffed, this office will carry out the inspection responsibilities USMMA shipboard training personnel previously performed. Until this new office is organized and staffed, MARAD will assign personnel from its Office of Strategic Sealift to conduct vessel compliance reviews.
• Establish Task Force on USMMA Governance and Culture: DOT will create a Task Force to assess and, as needed, recommend changes to transform USMMA's external and internal governance and Academy culture.
• Each Vessel Operator agrees to comply with the EMBARC Standards, which replace the SCCT Sea Year Eligibility Requirements (dated March 16, 2020), by confirming completion of the immediate actions (set forth in Section III, below) on the EMBARC Accession checklist and submitting the checklist to MARAD. Vessel operators shall submit copies of their SASH policies together with the accession checklist and statement of compliance document.
• Each Vessel Operator agrees to conduct self-assessments of its compliance with the EMBARC Standards annually thereafter and to submit confirmation of such self-assessments and any resultant changes from the annual self-assessments to MARAD. Vessel Operators shall submit copies of their SASH policies together with assessment results.
• Each Vessel Operator agrees to permit MARAD—including third parties engaged by MARAD—to conduct recurring assessments of its compliance with the EMBARC Standards.
Before accepting cadets on board, each operator shall take the following actions:
• Safety Management System.
○ Affirm that SASH reporting policies and procedures that ensure compliance with the Standards of the EMBARC program will be operational upon enrollment and will be documented within the Safety Management System (SMS) within 90 days of enrollment.
• Designated SASH Contact.
○ Designate a person ashore who will be the primary contact for all SASH issues (SASH Contact). The SASH Contact must have completed the free 40-hour Victim Assistance Training Online provided by the Office for Victims of Crime Training & Technical Assistance Center, and received the Certificate of Completion, or have completed an equivalent training program.
• Meetings Between the SASH Contact and Cadet.
○ Confirm that cadets will have (1) a virtual or in-person meeting with the SASH Contact before joining a ship; or (2) if there is inadequate time between a cadet's assignment to a vessel and the cadet's embarkation, the SASH Contact shall have contact with the cadet within 48 hours of the cadet's embarkation.
• Communication Measures.
○ Implement measures to—
Confirm that SASH Contacts and cadets can communicate as needed once a cadet is on board, including adopting measures to require that the SASH Contact initiate contact with each assigned cadet within the first 7 days of vessel onboarding;
Confirm that the SASH Contact shall respond to cadet outreach no later than the next business day;
Ensure that whenever a cadet is aboard a vessel for more than 30 days, the SASH Contact shall initiate contact, via email, with the cadet at least every 14 days;
Require the SASH Contact to encourage and honor requests from cadets for increased frequency of check-ins; and
Ensure the SASH Contact makes a record of any possible violations and ensures prompt and thorough investigation and corrective action, where appropriate, and/or referral to proper authorities.
• Safety practices.
○ Reinforce Vessel Operator safety practices (including SASH prevention, bystander intervention, reporting procedures, and alcohol prohibitions) frequently with every cadet and crew member through onboard or virtual meetings in accordance with company procedures to strengthen a culture of prevention and build industry-wide understanding and accountability.
• Crew-Cadet Interaction.
○ Adopt policies that prohibit cadets from entering the stateroom of any other crew member; prohibit ship's crew members from entering cadets' private staterooms for any reason other than official maintenance or housekeeping duties during appropriate working hours and with adequate notice; and provide functional door locks for all cadet staterooms. Vessel Operator SASH policies shall include a list of all master key holders with access to cadet staterooms identified by position. Vessel Operator policies shall also establish and maintain open-door office or workspace interaction between cadets and other ship's employees, except when impractical due to vessel compartment configuration or safety procedures.
• Vessel Operator training requirements.
○ Safety Management Systems shall establish quarterly training requirements on SASH prevention, bystander intervention, reporting, and response procedures for all shipboard personnel (regardless of whether cadets are onboard). Cadets shall participate in, but shall not have any role in managing, this training.
○ All officers and crew shall be required to complete the
○ Incorporate SASH discussions in periodic Vessel Safety Meetings using materials similar to those in the Facilitator's Guide and Student Workbook in the SOCP SASH Tool Kit. The SOCP SASH Tool Kit is available at no charge from SOCP.
○ Provide copies of vessel operator's SASH prevention policies and reporting procedures to each cadet upon boarding the vessel.
○ Display company policies prohibiting SASH, retaliation, drug and alcohol usage, and cadet presence in crew member staterooms/crew member presence in cadet staterooms on board.
○ Display posters and guides that support a respectful and inclusive workplace culture. Display SASH prevention, reporting, and response posters prominently in common areas of the vessel. Vessel Operators shall also display such posters in shoreside facilities to which cadets have access.
○ Distribute the quick reference guide brochures in the SOCP SASH Tool Kit or other comparable materials to all crew, officers, cadets, and all shore-based personnel who interact with, or have responsibilities related to, officers, crew and cadets. Tips for prevention of, and response to, SASH behaviors shall be provided as appropriate for each intended audience.
○ Vessel operators agree to reinforce training, by specifically:
Requiring Vessel Masters to introduce cadets to ship's company employees as soon as practicable after boarding to foster an open, welcoming environment for Sea Year students.
Requiring Vessel Masters to ensure that cadets are familiarized with the ship during onboarding in accordance with the Safety Management System.
Reporting procedures provided to officers, crew, cadets, and posted on the vessel shall include: (1) Contact information for the Vessel Operator's SASH Contact(s) and (2) Point of contact information for notifications to the Coast Guard.
Notifications can be made to the Coast Guard National Command Center at (202) 372–2100, or through the CG Tips, a web-based and mobile alternative to submit either attributed or anonymous reports about crimes witnessed or experienced aboard a vessel directly to a Coast Guard criminal investigator. The CG Tips App can be downloaded from a mobile provider's marketplace. For more information about CGIS, or to submit a tip via the web, visit:
• Reporting.
○ When cadets are embarked, Vessel Operators shall immediately (within 24 hours after learning of an allegation) notify USMMA of an allegation of SASH-involved behavior, regardless of whether the behavior involves a cadet. If the incident involves a cadet, operators shall provide a complete report of investigation to USMMA when concluded. Vessel Operator policies shall require that: (1) Thorough investigation of alleged violations of the SASH policy meet best practices for investigations of sexual assaults and sexual harassments; and, (2) interviews be conducted using trauma-informed interview methods.
○ The Vessel Operator's company policies shall require that all shipboard complaints of a sexual offense prohibited under current law must be immediately reported to the Coast 1 (202) 372–2100, or as an attributed report through CG Tips—a web-based and mobile alternative to submit reports about crimes witnessed or experienced aboard a vessel directly to a Coast Guard criminal investigator. The CG Tips App can be downloaded from a mobile provider's marketplace. For more information about CGIS, or to submit a tip via the web, visit:
○ Vessel Operator company leadership should inform the Coast Guard of adverse or disciplinary actions that result in termination or a probationary status of any crewmember for harassment or SASH. Reports of mariner misconduct should be made to nearest Coast Guard Officer In Charge, Marine Inspection which can be found at the following website:
• Best Practices.
Each Vessel Operator shall review company policies within the Safety Management System to determine if they are at least as comprehensive as those listed in the current version of the SOCP Best Practices Guide and revise as necessary, including but not limited to the following policies:
○ Employee Best Practices:
○ Vessel Operator Company Best Practices:
Vessel operators shall comply with the reporting procedures listed herein instead of any obsolete reporting procedures in the SOCP Best Practices Guide.
• Compliance Review.
○ Vessel Operators shall meet with DOT, MARAD, USMMA and other invited government and industry participants quarterly, or as called by DOT/MARAD/USMMA, to assess compliance with SASH policies and implement any necessary adjustments and/or corrections.
• Within one year, implement vessel master key control systems, manual or electronic.
• Within one year, develop and implement recommended SASH Contact training and annual refresher training for designated SASH contacts to include survivor advocacy and instruction in training and education principles. Each Vessel Operator shall designate and train an appropriate number of designated SASH Contacts to ensure that an adequate number (a minimum of one primary and one alternate) are always available.
• Within one year, work with other Vessel Operators, labor, academies, SOCP and/or other industry organizations, SASH subject matter experts, MARAD and other stakeholders to review and enhance SASH policies used by vessel operators. MARAD will initiate revisions of the SOCP SASH Best Practices Guide. Such revisions will include, among other things updates to best practices and templates to support incorporation of SASH prevention, reporting, and response as well as internal audit and external audit procedures into Company and Vessel Safety Management Systems.
• Within one year, work with other Vessel Operators, labor, academies, industry organizations, SASH subject matter experts, MARAD and other stakeholders to develop and implement enhanced policies and training pertaining to bystander reporting requirements and bystander duty to intervene in SASH incidents.
• Within eighteen months, collaborate with other Vessel Operators, mariner unions, Academies, union training schools, SASH subject matter experts, MARAD, USCG and other stakeholders to develop and implement expanded mandatory annual SASH training for all crew members including, but not limited to:
○ SASH (including bystander intervention);
○ Micro aggression consciousness;
○ Cadet relationships;
○ Creating and maintaining a respectful work environment; and
○ Training regimens and methods that enable effective crew awareness of SASH prevention principles.
• As soon as practicable, but not later than two years, work with other Vessel Operators, labor, Academies, industry organizations, SASH subject matter experts, MARAD, USCG, and other stakeholders, to develop, establish and participate in, to the extent permissible under law, the maintenance and operation of a SASH perpetrator information exchange.
○ The exchange shall contain the names of all merchant mariners who are the subjects of substantiated reports of discriminatory, SASH-related, violent, or other violative behavior, or who were terminated in related proceedings; the incident dates; the bases of substantiation; and the disposition of each circumstance shall be recorded and accessible to all operators of U.S.-flag vessels.
These will be developed in coordination with the MARAD and other Government and maritime industry participants and may include:
• Consideration of a range of possible measures to address accountability for the SASH climate onboard Vessel Operator ships that could include:
○ training on records maintenance;
○ identified perpetrator tracking and record keeping, to the extent permissible by law;
○ recorded video monitoring of, at a minimum, passageways immediately adjacent to cadet staterooms;
○ enhanced Diversity, Equity, and Inclusion (DEI) initiatives and practices in the mariner workforce; and
○ training and credentialing of officers at the Provisional level by the National Advocate Credentialing Program.
• Collaboration with the U.S. Coast Guard, other Vessel Operators, mariner unions, and industry organizations to develop the requirements of a merchant mariner credential that satisfies training requirements for SASH Contacts and designated onboard officers or other persons ashore to attain and maintain respective Basic and Provisional NACP training levels.
The following definitions and examples are derived from the 2017 Best Practices Guide on Prevention of Sexual Assault and Sexual Harassment in the U.S. Merchant Marine (SOCP BPG), published by the Ship Operations
• Sexual Assault is a crime of violence defined as intentional touching of a sexual nature against the will (by use of force, physical threat, coercive conduct, or abuse of authority), or without the consent of another person, or where that person is incapacitated (
○ Sexual intercourse, including anal, oral, or vaginal penetration, however slight, with a body part (
○ Kissing, touching, groping, fondling, or other intentional contact with the breasts, buttocks, groin, or genitals (over or under an individual's clothing) for purposes of sexual gratification or when such private body parts are otherwise touched in a sexual manner;
○ Sexual contact with someone who is unable to say “no” and/or change their mind due to the presence of coercion or intimidation; or
○ Sexual contact with someone who is under the age of consent in the jurisdiction in which the sexual assault occurs.
• Sexual Harassment and Gender-Based Harassment: Sexual harassment is any unwelcome sexual advance, request for sexual favors, or other unwelcome verbal, non-verbal, graphic, or physical conduct of a sexual nature, including, but not limited to the following:
○ Submission to or rejection of such conduct is either an explicit or implicit term or condition of an individual's employment or advancement in employment, evaluation of academic work or advancement in an academic program, or basis for participation in any aspect of an Academy program or activity, including shipboard training
○ Submission to or rejection of such conduct by an individual is used as a basis for decisions affecting the individual (
○ Such conduct has the purpose or effect of unreasonably interfering with an individual's learning, working, or living environment; in other words, it is sufficiently severe, pervasive, or persistent as to create an intimidating, hostile, or offensive learning, working, or living environment under both an objective—a reasonable person's view—and subjective—the Complainant's view—standard (hostile environment).
○ Examples of Sexual Harassment include, but are not limited to, the following behaviors:
Verbal conduct such as epithets, derogatory or off-color jokes or comments of a sexual nature, slurs or unwanted sexual advances, invitations, or comments, discussing sexual activities, commenting on physical attributes, using demeaning names, or using crude language;
Visual conduct such as derogatory or sexually oriented posters, photography, cartoons, drawings, or gestures, or exposing oneself;
Physical conduct such as unwanted or unnecessary touching, the blocking of voluntary movement, or interfering with a person's work due to the refusal of sexual advances or a person's sexual orientation;
Threats and demands to submit to sexual requests as a condition of continued employment or to avoid discipline; and
Rewards and offers of employment benefits in return for sexual favors.
• Gender-Based Harassment includes harassment based on gender, sexual orientation, gender identity, or gender expression, which may include acts of aggression, intimidation, or hostility, whether verbal or non-verbal, graphic, physical, or otherwise, even if the acts do not involve conduct of a sexual nature. Examples of sexual or gender-based harassment include, but are not 1imited to, the following:
○ Unwanted flirtation, advances or propositions of a sexual nature;
○ Verbal conduct, including lewd or sexually suggestive comments, jokes, or innuendos, or unwelcome comments about an individual's sexual orientation or gender identity;
○ Written conduct, including letters, notes, or electronic communications containing comments, words, jokes, or images that are lewd or sexually suggestive, or relate in an unwelcome manner to an individual's sexual orientation or gender identity.
• Relationship Violence refers to controlling, abusive behavior, including any act of violence or threatened act of violence, against a person who is, or has been involved, in a sexual, dating, domestic, cohabiting or married relationship with that person. Relationship violence can take place in heterosexual or same-sex relationships, and sometimes also involves violence against the children in the family. Relationship violence can take a number of forms including physical, verbal, emotional, economic, and sexual abuse, or any combination thereof.
○ Domestic violence: The term “domestic violence” includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the applicable jurisdiction, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the applicable jurisdiction.
○ Dating violence: The term “dating violence” means violence committed by a person (a) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (b) where the existence of such a relationship shall be determined based on a consideration of the following factors: (1) The length of the relationship; (2) the type of relationship; and (3) the frequency of interaction between the persons involved in the relationship.
• Stalking is a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others or suffer substantial emotional distress. Such conduct includes, but is not limited to, unwelcome acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person or interferes with a person's property. It includes cyber-stalking, in which electronic media, such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact are used. Stalking can occur in a dating relationship, friendship, or past relationship, or can be perpetrated by a stranger.
• Harassment is the act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands. The purpose may vary, including racial prejudice, personal malice, and attempt to force someone to quit a job or grant sexual favors, or merely gain sadistic pleasure from making someone fearful or anxious.
• Bullying is the use of force, threat, or coercion to abuse, intimidate or aggressively dominate others. The behavior is often repeated and habitual. One essential prerequisite is the perception, by the bully or by others, of an imbalance of social or physical power, which distinguishes bullying from conflict.
• Consent means clear words or overt acts by a competent person indicating freely given agreement to engage in mutually agreed upon sexual conduct. An expression of refusal through words or conduct means there is no consent. Consent may not be inferred from silence, passivity, or lack of resistance alone. Consent to one form of sexual activity does not imply consent to other forms of sexual activity, and the existence of a current or previous dating or sexual relationship is not sufficient to constitute consent to additional sexual activity. Consent may be initially given but can be withdrawn at any time.
○ Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness, being asleep, being involuntarily restrained, or being coerced or intimidated. Depending on the degree of intoxication, an individual who is under the influence of alcohol, drugs, or other intoxicants, may be incapacitated and, therefore, unable to consent.
• Sexual Exploitation occurs when a person takes non-consensual or abusive sexual advantage of another person for their own advantage or benefit or for the advantage or benefit of anyone else. Examples of sexual exploitation include but are not limited to the following:
○ Voyeurism (such as watching or taking pictures, videos, or audio recordings of another person engaging in a sexual act, in a state of undress, or in a place and time where such person has the reasonable expectation of privacy, such as a changing room, toilet, bathroom, or shower, each without the affirmative consent of all parties);
○ Disseminating, streaming, or posting pictures or video of another in a state of undress or of a sexual nature without the person's affirmative consent;
○ Exposing one's genitals to another person without affirmative consent; or
○ Knowingly exposing another individual to a sexually transmitted infection or virus without the other individual's knowledge.
• Retaliation (sometimes referred to as reprisal) means taking or threatening to take any adverse action taken against an individual for making a good faith report of conduct prohibited under the organization's Policy, or for participating in any investigation or proceeding resulting from such a report. Retaliation includes threatening, intimidating, harassing, or any other conduct that would discourage a reasonable person from making a report, or from participating in proceedings related to such a report. Examples of retaliation include, but are not limited, to the following:
○ Disadvantaging or restricting a person in their status as an employee or cadet, or in their ability to gain benefits or opportunities available at the organization or the USMMA;
○ Precluding a person from filing a report of prohibited conduct;
○ Pressuring someone to drop or not support a complaint, or to provide incomplete, false, or misleading information; or
○ Adversely altering the educational or work environment of someone who has r participated in the complaint process.
By order of the Acting Maritime Administrator.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice and request for comments on a request for extension of a currently approved information collection.
In compliance with the Paperwork Reduction Act of 1995 (PRA), this notice announces that the Information Collection Request (ICR) summarized below will be submitted to the Office of Management and Budget (OMB) for review and approval. The ICR describes the nature of the information collection and its expected burden. This ICR is for a request for extension of NHTSA's currently approved information collection for petitions for hearings on notification and remedy of defects. A
Comments must be submitted on or before April 29, 2022.
Written comments and recommendations for the proposed information collection, including suggestions for reducing burden, should be submitted to the Office of Management and Budget at
For additional information or access to background documents, contact Nicholas LaBruna, Recall Management Division (NEF–107), Room W46–438, NHTSA, 1200 New Jersey Ave. SE, Washington, DC 20590. Telephone: (202) 366–1781. Please identify the relevant collection of information by referring to its OMB Control Number (2127–0039).
Under the PRA (44 U.S.C. 3501
To implement these statutory provisions, NHTSA promulgated 49 CFR part 557, Petitions for Hearings on Notification and Remedy of Defects. Part 557 establishes procedures for the submission and disposition of petitions for hearings on the issues of whether the manufacturer has reasonably met its obligation to notify owners, purchasers, and dealers of safety-related defects or noncompliance, or to remedy such defect or noncompliance free of charge.
When NHTSA last sought approval for the extension of this information collection, the agency estimated it would receive one petition a year and estimated that, with an estimated one hour of preparation time for each petition, the total annual burden for this collection would be 1 hour. The agency now believes that a more accurate estimate would be 0 petitions and 0 burden hours each year, based on the agency not receiving of any such petitions submitted in recent years. However, NHTSA continues to estimate that the time to prepare a petition is 1 hour and, to account for the possibility of receiving a petition in a given year, NHTSA estimates the total annual burden of this collection to be 1 hour (1 petition × 1 hour to prepare).
NHTSA estimates that the only cost burden to respondents (
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Denial of petition for a defect investigation.
This notice sets forth the reasons for the denial of a petition submitted on September 27, 2021, by Mr. James Lamb to NHTSA's Office of Defects Investigation (ODI). The petition requests that the Agency initiate an investigation into alleged “defects in the 2006 J1939 databus,” citing a 2016 research paper published through the University of Michigan. On December 23, 2021, NHTSA opened Defect Petition DP21–005 to evaluate the petitioner's request. After reviewing the information provided by the petitioner regarding the alleged defect and conducting searches of complaints from vehicle owners, operators, and fleet supervisors, NHTSA has concluded that there is insufficient evidence to warrant further action at this time. Accordingly, the Agency has denied the petition.
Mr. Ryan Rahimpour, Medium and Heavy-Duty Vehicle Defects Division, Office of Defects Investigation, NHTSA, 1200 New Jersey Ave. SE, Washington, DC 20590 (telephone 202–366–8756).
Pursuant to 49 CFR 552.1, interested persons may petition NHTSA requesting that the Agency initiate an investigation to determine whether a motor vehicle or item of replacement equipment fails to comply with applicable motor vehicle safety standards or contains a defect that relates to motor vehicle safety. 49 U.S.C. 30162; 49 CFR part 552. Upon receipt of a properly filed petition, the Agency conducts a technical review of the petition, material submitted with the petition, and any additional information. 49 U.S.C. 30162(c); 49 CFR
Mr. James Lamb (the petitioner), Executive Director of the Small Business in Transportation Coalition (SBTC), submitted a petition to NHTSA on September 27, 2021. The petition requested NHTSA to initiate a defect investigation into the potential hacking susceptibility of the Society of Automotive Engineers (SAE) J1939 Data Bus standard.
In support of the petition, the petitioner cited a 2016 study from University of Michigan (Michigan) researchers, entitled Truck Hacking: An Experimental Analysis of the SAE J1939 Standard, which alleges a SAE J1939 Data Bus vulnerability in a Model Year (MY) 2001 school bus and a MY 2006 Class-8 semi-tractor.
On December 23, 2021, ODI opened Defect Petition Investigation DP21–005 to evaluate the petitioner's request. In evaluating the petition, ODI reviewed the cited University of Michigan study to understand and determine the scope and feasibility of the alleged defect and reviewed the NHTSA database for similar complaints.
The petitioner did not specify the make and model of the vehicles with the alleged safety defect. The only categories of relevant subject vehicles specified were found in the Michigan study: MY 2001 school buses and MY 2006 Class-8 semi-tractors.
After reviewing the available information and using ODI's risk-based processes, ODI has not identified evidence that would support opening a defect investigation into the subject vehicles. The vehicle vulnerabilities reported in the Michigan study required physical access to the J1939 connector in order to affect vehicle critical safety functions such as the accelerator control or braking systems. Whether there is a potential for remote compromise is a factor that NHTSA has considered in evaluating the likelihood or frequency of a potential safety defect. The Michigan study did not demonstrate a remote compromise of these vehicles. In addition, based on the age of the subject model year school buses and semi-tractors, they do not have over-the-air software update capabilities or an internet connection to make remote compromise possible.
ODI conducted a search for similar complaints received by the Agency and found no complaints of any type related to this alleged vulnerability, aside from the Petition. This evaluation included searches of complaints from vehicle owners, operators, and fleet supervisors. ODI has not found any similar events, complaints, or allegations suggesting a real-life vulnerability based on the available information. Therefore, given a thorough analysis of the potential for finding a safety-related defect in the subject vehicles, and in view of NHTSA's enforcement priorities, a defects investigation is unlikely to result in a finding that a defect related to motor vehicle safety exists.
NHTSA is authorized to issue an order requiring notification and remedy of a defect if the Agency's investigation shows a defect in the design, construction, or performance of a motor vehicle that presents an unreasonable risk to safety. 49 U.S.C. 30102(a)(9), 30118. Given that the existing information does not provide evidence of a real-life vulnerability in the alleged subject vehicles, caused by a vehicle-based defect, it is unlikely that an order concerning the notification and remedy of a safety-related defect would be issued due to any investigation opened upon grant of this petition. Therefore, and upon full consideration of the information presented in the petition and the potential risks to safety, the petition is denied. The denial of this petition does not foreclose the Agency from taking further action if warranted or making a future finding that a safety-related defect exists based upon additional information the Agency may receive.
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 subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
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 Assistant Director for Sanctions Compliance & Evaluation, tel.: 202–622–2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On March 25, 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 authority listed below.
1. HEIN, Zaw, Burma; DOB 01 Jan 1974 to 31 Dec 1975; citizen Burma; Gender Male (individual) [BURMA–EO14014].
Designated pursuant to section 1(a)(iii)(A) of Executive Order 14014 of February 10, 2021, “Blocking Property With Respect to The Situation In Burma” (“E.O. 14014”), 86
2. OO, Ko Ko, Zayyarthiri, Nay Pyi Taw, Burma; DOB 02 Dec 1972; POB Bhamaw, Burma; nationality Burma; Gender Male; Passport OM039639 (Burma) issued 13 Nov 2015 expires 12 Nov 2020 (individual) [BURMA–EO14014].
Designated pursuant to section 1(a)(iii)(A) of E.O. 14014, for being a foreign person who is or has been a leader or official of the military or security forces of Burma, or any successor entity to any of the foregoing.
3. AUNG, Naing Htut, Burma; DOB 27 Jan 1968; nationality Burma; Gender Male (individual) [BURMA–EO14014].
Designated pursuant to section 1(a)(i) of E.O. 14014 for operating in the defense sector of the Burmese economy or any other sector of the Burmese economy as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State.
4. AUNG, Sit Taing (a.k.a. ASUNG, Sit Thaing; a.k.a. AUNG, Sitt Thaing), Burma; DOB 13 Nov 1971; nationality Burma; citizen Burma; Gender Male (individual) [BURMA–EO14014].
Designated pursuant to section 1(a)(i) of E.O. 14014 for operating in the defense sector of the Burmese economy or any other sector of the Burmese economy as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State.
5. OO, Aung Hlaing, Burma; DOB 11 Jun 1977; nationality Burma; Gender Male (individual) [BURMA–EO14014].
Designated pursuant to section 1(a)(i) of E.O. 14014 for operating in the defense sector of the Burmese economy or any other sector of the Burmese economy as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State.
1. 66TH LIGHT INFANTRY DIVISION (a.k.a. LIGHT INFANTRY DIVISION 66; a.k.a. “66 LID”; a.k.a. “#66 DIVISION”; a.k.a. “DIV. 66”; a.k.a. “LID 66”), Pyay Township, Bago Region, Burma; Target Type Government Entity [BURMA–EO14014].
Designated pursuant to section 1(a)(ii)(D) of E.O. 14014 for being responsible for or complicit in, or having directly or indirectly engaged or attempted to engage in, the arbitrary detention or torture of any person in Burma or other serious human rights abuse in Burma.
2. INTERNATIONAL GATEWAYS GROUP OF COMPANY LIMITED, Pyay Road No. 3X, Highland Avenue 6 Ward, 7 Mile, Mayangone Township, Yangon Region, Burma; Organization Type: Activities of holding companies; Target Type Private Company; Registration Number 182733636 (Burma) issued 29 Jun 2011 [BURMA–EO14014] (Linked To: AUNG, Naing Htut).
Designated pursuant to section 1(a)(vii) of E.O. 14014 for being owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, the military or security forces of Burma or any person whose property and interests in property are blocked pursuant to this order.
3. MYANMAR CHEMICAL AND MACHINERY COMPANY LIMITED (a.k.a. MCM GROUP), No. 566/KA, Yazahtarni Road, Paung Laung 2 Quarter, Pyinmana Township, Naypyitaw, Burma; NO.2, 7 Mile Hill, MG Weik Housing, Mayangone Township, Yangon Region, Burma; Organization Type: Wholesale of other machinery and equipment; Target Type Private Company; Registration Number 100220040 (Burma) issued 10 Feb 2001 [BURMA–EO14014] (Linked To: OO, Aung Hlaing).
Designated pursuant to section 1(a)(vii) of E.O. 14014 for being owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, the military or security forces of Burma or any person whose property and interests in property are blocked pursuant to this order.
4. HTOO GROUP OF COMPANIES (a.k.a. HTOO GROUP; a.k.a. “HCG”), No. 5, Pyay Road, Hlaing Township, Yangon, Burma; Organization Type: Activities of holding companies; Target Type Private Company [BURMA–EO14014] (Linked To: ZA, Tay).
Designated pursuant to section 1(a)(vii) of E.O. 14014 for being owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, TAY ZA, a person whose property and interests in property are blocked pursuant to this order.
5. ASIA GREEN DEVELOPMENT BANK LTD (a.k.a. AGD BANK; a.k.a. ASIA GREEN DEVELOPMENT BANK LIMITED; a.k.a. ASIA GREEN DEVELOPMENT BANK PUBLIC COMPANY LIMITED), No. 73/75, Sule Pagoda Road, Pebadan Township, Yangon, Burma; SWIFT/BIC AGDBMMMY; website
Designated pursuant to section 1(a)(vii) of E.O. 14014 for being owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, HTOO GROUP OF COMPANIES, a person whose property and interests in property are blocked pursuant to this order.
E.O. 14014, 86 FR 9429
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning information collection requirements related to guidance for qualification as an acceptance agent, and execution of an agreement between an acceptance agent and the Internal Revenue Service relating to the issuance of certain taxpayer identifying numbers.
Written comments should be received on or before May 31, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Include “OMB Number 1545–1499—Guidance for qualification as an acceptance agent, and execution of an agreement between an acceptance agent and the Internal Revenue Service relating to the issuance of certain taxpayer identifying numbers” in the subject line of the message.
Requests for additional information or copies of this collection should be directed to Martha R. Brinson, at (202) 317–5753, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Departmental Offices, Department of the Treasury.
Request for comment.
The Terrorism Risk Insurance Act of 2002, as amended (TRIA), established the Terrorism Risk Insurance Program (TRIP or Program). TRIA requires the Secretary of the Treasury (Secretary) to submit a report to Congress by June 30, 2022 concerning, in general, the overall effectiveness of TRIP. To assist the Secretary in formulating the report, the Federal Insurance Office (FIO) within the Department of the Treasury (Treasury) is seeking comments from the insurance sector and other stakeholders on the statutory factors to be analyzed in the report, as well as feedback on other issues relating to the effectiveness of TRIP.
Submit comments on or before May 16, 2022.
Submit comments electronically through the Federal eRulemaking Portal at
Richard Ifft, Senior Insurance Regulatory Policy Analyst, Federal Insurance Office, (202) 622–2922, Sherry Rowlett, Program Analyst, Federal Insurance Office, (202) 622–1890, Jeremiah Pam, Senior Insurance Regulatory Policy Analyst, Federal Insurance Office, (202) 622–7009, or Saurav Banerjee, Senior Insurance Regulatory Policy Analyst, Federal Insurance Office, (202) 622–5330. Persons who have difficulty hearing or speaking may access these numbers via TTY by calling the toll-free Federal Relay Service at (800) 877–8339.
TRIA
Treasury seeks comments on each of the following factors, which Treasury is required under TRIA Section 104(h)(2) to consider in the Effectiveness Report:
1. The overall effectiveness of TRIP;
2. The availability and affordability of terrorism risk insurance, including specifically for places of worship;
3. Any changes or trends relating to the data Treasury collects in its annual TRIP Data Calls, and the implications of such observations with regard to the effectiveness of TRIP;
4. Whether any aspects of TRIP have the effect of discouraging or impeding insurers from providing one or more lines of commercial property and casualty insurance coverage or coverage for acts of terrorism; and
5. Any impact of TRIP on workers' compensation insurers in particular.
This request for comment will provide stakeholders the opportunity to provide qualitative feedback and analysis that may not be otherwise observable through the results of the TRIP Data Calls. Information and views of stakeholders on the factors listed above will assist Treasury in the formulation of the Effectiveness Report and provide meaningful opportunity for stakeholder engagement. In addition, and more generally, such public input may assist the Secretary in the administration of TRIP.
In addition to seeking comments on the above factors outlined in Section 104(h)(2) of TRIA, Treasury understands that other issues and factors in the insurance market relating to terrorism risk insurance, in addition to those factors specified in TRIA, could have an impact on the effectiveness of the Program. Treasury accordingly also seeks comments on the following topics:
1. Whether any lines of insurance or coverages within certain lines of insurance currently subject to the Program no longer require the support of TRIP to ensure the availability and affordability of terrorism risk insurance;
2. Whether any lines of insurance or coverages within certain lines of insurance currently not subject to the Program should be included within TRIP to promote the availability and affordability of terrorism risk insurance;
3. Whether, and in what fashion, insurance market changes associated with the impact of the COVID–19 pandemic have also affected the market for terrorism risk insurance;
4. The availability of terrorism risk insurance coverage for losses arising from nuclear, biological, chemical, or radiological (NBCR) exposures, and the availability of reinsurance or capital markets support for such terrorism risk insurance;
5. The current state of the cyber insurance market, including the scope of coverage available, the availability and affordability of such coverage, and the effect of ransomware-related losses on the market;
6. Terrorism risk insurance issues presented by cyber-related losses, and the impact of TRIP in connection with such exposures, including views on cyber-related terrorism losses that are included within TRIP and those losses outside of TRIP;
7. Any potential changes to TRIA or TRIP that would encourage the take up of insurance for cyber-related losses arising from acts of terrorism as defined under TRIA, including but not limited to the modification of the lines of insurance covered by TRIP and revisions to the current sharing mechanisms for cyber-related losses;
8. The availability of reinsurance or capital markets support for cyber-related losses arising from acts of terrorism as defined under TRIA;
9. The manner in which captive insurers access TRIP, including the extent to which coverage is provided on a standalone versus embedded basis, or for NBCR risks only, and the reasons behind such choices;
10. The current status of terrorism risk modeling capabilities, and the use of those techniques in the placement of terrorism risk insurance;
11. Given the increasing availability of more granular information than state or metropolitan level information (such as ZIP code level or geocoded information), please provide views on how FIO could leverage such information to further augment its analysis of the terrorism risk insurance market and TRIP, particularly since the immediate physical impact of individual terrorism-related events may be localized; and
12. Any other issues relating to TRIP, terrorism risk insurance, or reinsurance that may be relevant to FIO's assessment of the effectiveness of TRIP in the report.
Departmental Offices, 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 31, 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:
•
Jeffrey Stout, State Small Business Credit Initiative (SSBCI), at (866) 220–9050 or
•
•
•
•
44 U.S.C. 3501
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before April 29, 2022 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Spencer W. Clark by emailing
The BSA authorizes the Secretary of the Treasury,
The Secretary is authorized to require any “resident or citizen of the United States or a person in, and doing
31 CFR 1010.360(a) authorizes the Secretary, when the Secretary deems appropriate, to promulgate regulations requiring specified financial institutions to file reports of certain transactions with designated FFAs.
A regulation promulgated pursuant to 31 CFR 1010.360(a) must designate one or more of the following categories of information to be reported by the specified financial institution:
• Checks or drafts, including traveler's checks, received by a respondent financial institution for collection or credit to the account of a designated FFA, sent by the respondent financial institution to a foreign country for collection or payment, drawn by the respondent financial institution on a designated FFA, or drawn by a designated FFA on the respondent financial institution, including the following information: Name of maker or drawer; name of drawee or drawee financial institution; name of payee; date and amount of instrument; and names of all endorsers.
• Transmittal orders received by a respondent financial institution from a designated FFA or sent by the respondent financial institution to a designated FFA, including all information maintained by that institution pursuant to 31 CFR 1010.410 and 1020.410.
• Loans made by a respondent financial institution to or through a designated FFA, including the following information: Name of borrower; name of person acting for borrower; date and amount of loan; terms of repayment; name of guarantor; rate of interest; method of distributing proceeds; and collateral for loan.
• Commercial paper received or shipped by a respondent financial institution, including the following information: Name of maker; date and amount of paper; due date; certificate number; and amount of transaction.
• Stocks received or shipped by a respondent financial institution, including the following information: Name of corporation; type of stock; certificate number; number of shares; date of certificate; name of registered holder; and amount of transaction.
• Bonds received or shipped by a respondent financial institution, including the following information: Name of issuer; bond number; type of bond series; date issued; due date; rate of interest; amount of transaction; and name of registered holder.
• Certificates of deposit received or shipped by a respondent financial institution, including the following information: Name and address of issuer; date issued; dollar amount; name of registered holder; due date; rate of interest; certificate number; and name and address of issuing agent.
In issuing regulations as provided in 31 CFR 1010.360(a), the Secretary must prescribe: A reasonable classification of financial institutions subject to or exempt from a reporting requirement; a foreign country to which a reporting requirement applies if the Secretary decides that applying the requirement to all foreign countries is unnecessary or undesirable; the magnitude of transactions subject to a reporting requirement; and the kind of transaction subject to or exempt from a reporting requirement.
Regulations issued pursuant to 31 CFR 1010.360(a) may prescribe the manner in which the information is to be reported. However, the Secretary may authorize a designated financial institution to report in a different manner if the institution demonstrates to the Secretary that the form of the required report is unnecessarily burdensome on the institution as prescribed; that a report in a different form will provide all the information the Secretary deems necessary; and that submission of the information in a different manner will not unduly hinder the effective administration of 31 CFR Chapter X.
In issuing regulations under 31 CFR 1010.360(e), the Secretary: (i) Must consider the need to avoid impeding or controlling the export or import of monetary instruments and the need to avoid burdening unreasonably a person making a transaction with a designated FFA; (ii) cannot issue a regulation under 31 CFR 1010.360(a) for the purpose of obtaining individually identifiable account information concerning a customer, as defined by the Right to Financial Privacy Act, where that customer is already the subject of an ongoing investigation for possible violation of the BSA, or is known by the Secretary to be the subject of an investigation for possible violation of any other Federal law; and (iii) may issue a regulation pursuant to 31 CFR 1010.360(a) requiring a financial institution to report transactions completed prior to the date it received notice of the reporting requirement. However, with respect to completed transactions, a financial institution may be required to provide information only from records required to be maintained pursuant to the requirements of 31 CFR Chapter X, or any other provision of state or Federal law, or otherwise maintained in the regular course of business.
31 CFR 1010.430(d) requires that all records that are required to be retained by Chapter X must be retained for a period of five years.
FinCEN is issuing this notice to renew the OMB control number for regulations requiring reports of transactions with designated FFAs.
Departmental Offices, Department of the Treasury.
Notice.
The Department of the Treasury has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance utilizing emergency review procedures in accordance with the Paperwork
Written comments must be received on or before April 14, 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
Treasury will collect a Quarterly Report at the end of each calendar year quarter for eligible entities that are a State or Tribal Government with a HAF allocation greater than $5 million. The Department of Hawaiian Home Lands and Tribal Governments with a HAF allocation less than $5 million will be required to submit a similar report once a year.
HAF participants will submit quarterly certifications and reports, including, among other things, details on program budget; HAF Homeowner applications approved; targeting metrics around Homeowners assisted; individual program information; and individual program design element information.
Additionally, Treasury will collect from each eligible participant an Annual Report once a year that will provide Treasury with high-level information on how the HAF participant is performing relative to their forecasted goals noted in their HAF Grantee Plan.
Treasury is requesting emergency processing to add compliance reporting (
Departmental Offices, Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments must be received on or before April 29, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Molly Stasko by emailing
Department of Veterans Affairs.
Notice.
The Department of Veterans Affairs (VA) is publishing this notice to inform the public about how it is implementing the Puppies Assisting Wounded Servicemembers for Veterans Therapy Act.
This notice is effective on March 30, 2022.
Stacey Pollack, 810 Vermont Avenue NW, Washington, DC 20420; 202–461–4174. This is not a toll-free telephone number.
The Puppies Assisting Wounded Servicemembers for Veterans Therapy Act (hereinafter referred to as “the Act”) was signed into law by the President on August 25, 2021, (Pub. L. 117–37, 135 stat. 329). Section 2 of the Act requires VA to conduct a pilot program to provide canine training to eligible veterans diagnosed with posttraumatic stress disorder (PTSD) as an element of a complementary and integrative health program for such veterans. This notice provides information on how VA will implement the requirements of section 2 of the Act and is not a solicitation for public comment or request for information regarding VA's implementation of section 2 of the Act, as outlined below. Therefore, responses to this notice may not be used to inform VA's implementation of section 2 of the Act, and VA will not address such responses. A brief summary of the provisions in section 2 of the Act follows.
• Section 2(a) requires that VA, not later than February 21, 2022, commence the conduct of a pilot program to provide canine training to eligible veterans diagnosed with PTSD as an element of a complementary and integrative health program for such veterans.
• Section 2(b) requires that the pilot program conducted under subsection (a) be carried out for a 5-year period beginning on the date of the commencement of the pilot program, by not fewer than 5 VA medical centers (VAMC) located in geographically diverse areas.
• Section 2(c) requires that, in carrying out the pilot program required under subsection (a), VA must seek to enter into agreements with nongovernmental entities that VA determines have the demonstrated ability to provide the canine training specified in subsection (a).
• Section 2(d) establishes certain conditions for inclusion in any agreements under subsection (c).
• Section 2(e) establishes that a veteran who has participated in the pilot program under subsection (a) may adopt a dog that the veteran assisted in training during the pilot program if the veteran and the veteran's health provider, in consultation with the entity that provided the canine training with respect to that dog under the pilot program, determine that it is in the best interest of the veteran. This section also includes language regarding the responsibility of the entity that provided the canine training under the pilot program to provide follow-up training support for the life of the dog, if the veteran who participated in the pilot program adopts the dog under this subsection.
• Section 2(f) establishes that participation in the pilot program under subsection (a) may not preclude a veteran from receiving any other medical care or treatment for PTSD furnished by VA for which the veteran is otherwise eligible.
• Section 2(g) establishes data collection requirements based on veterans' participation in the pilot program and such other factors as VA determines appropriate.
• Section 2(h) establishes VA's reporting requirements associated with the pilot program.
• Section 2(i) requires the Comptroller General to brief and report to Congress on the methodology of the pilot program.
• Section 2(j) establishes definitions, for purposes of section 2, for the following terms: Accredited service dog organization (SDO), eligible veteran and service dog training instructor.
VA's implementation of the pilot program will reflect the following considerations:
Section 2(a) provides that VA must conduct a pilot program to provide canine training to eligible veterans diagnosed with PTSD as an element of a complementary and integrative health program for such veterans. The term canine training is not defined in the Act, and VA has not otherwise defined this term. However, the term canine training is characterized in the Act as “an element of a complementary and integrative health program” for veterans participating in the pilot program. The Act similarly does not contain a definition of the term complementary and integrative health (CIH); however, VA's internal policy defines CIH as a group of diverse medical and health care approaches and practices that are not considered to be part of conventional or allopathic medicine.
Based on its experience, VA has distinguished the following two types of CIH: Treatment services and well-being services. Unlike treatment services, well-being services are often practices offered outside of a clinical setting and involve a practitioner or instructor teaching veterans to advance their sense of well-being and improve their quality of life.
VA is implementing the canine training under the pilot program as an element of CIH well-being services. CIH well-being services are those activities that a veteran may complete without the need for assistance from a health care
Section 2(a) requires that, not later than 180 days after the date of the enactment of the Act, VA must commence the conduct of a pilot program. As the Act was signed into law on August 25, 2021, VA was required to commence the conduct of a pilot program by February 21, 2022. By this date, VA selected the pilot program sites and initiated efforts at the sites to begin implementing the pilot program and to ensure VA staff are aware of the canine training to be conducted under the pilot program. However, the actual canine training did not begin by that date. VA is still working to form agreements with nongovernmental entities that will furnish the canine training. For purposes of section 2(b)(1), VA considers the date the pilot program commenced as February 21, 2022.
Section 2(j)(2) defines the term eligible veteran to mean a veteran who is enrolled in VA's patient enrollment system under 38 U.S.C. 1705 (regulated under 38 CFR 17.36), and who has been recommended for participation in the pilot program by a qualified mental health care provider or clinical team based on medical judgment that the veteran may benefit from such participation with respect to the PTSD symptoms of the veteran. In other words, to participate in the pilot, a veteran must meet three threshold conditions for eligibility; namely, the veteran must be (1) enrolled in the VA health care system; (2) diagnosed with PTSD; and (3) recommended by a VA mental health care provider or VA clinical team.
Section 2 does not define or characterize the phrase “qualified mental health care provider or clinical team.” Rather than define qualifications, VA interprets this phrase to mean that a VA mental health care provider or VA clinical team must recommend a veteran for participation in the pilot program. Limiting the recommendation to VA providers will allow VA to assess more consistently each veteran that may want to participate under the same criteria and will allow for more consistent collection of data, as required under section 2(g)(1)(B)–(D). Veterans, who receive care from non-VA providers under the Veterans Community Care Program and who wish to participate in the pilot program, can discuss the program with their non-VA provider but will need to obtain a recommendation from a VA mental health care provider or VA clinical team. Veterans interested in participating in the pilot program, who are receiving care from non-VA providers, should contact the participating VAMC where they receive care or authorization for non-VA care, for more information on how to participate in the pilot program.
Before a VA mental health care provider or VA clinical team can recommend the veteran for participation in the program, the veteran must have had an appointment with a primary care, mental health, whole health, recreation therapy or social work provider within the previous 3 months. VA will also require veterans participating in the program to remain engaged with one or more of these clinical areas; to remain engaged, a veteran must have an appointment at least once every 3 months until they have completed the pilot program. Section 2(j)(2)(B) requires a qualified mental health care provider or clinical team to form a medical judgment that participation in the pilot program may benefit the veteran with respect to the veteran's PTSD. Having regular appointments (at least 1 every 3 months) is essential to ensure that this judgment is still accurate. If a veteran who is interested in participating in the pilot program has not been seen for an appointment within the last 3 months, the veteran can schedule an appointment with a VA provider to begin the recommendation and screening process.
Once the veteran has had this appointment, the veteran can then be screened for participation. This screening will be performed by a licensed independent VA mental health care provider to confirm the diagnosis of PTSD through a clinical assessment and determine suitability for participation in the pilot program. This screening must occur within 3 months prior to the first canine training session. This may require subsequent screening in some cases; for example, if a veteran was screened and recommended for participation in the pilot program on January 1, but the veteran is unable to participate in the program until July 31, due to limited space or other issues, the veteran may need to be screened again prior to participation. This screening would not necessarily require the veteran to schedule another appointment with the licensed independent VA mental health care provider; although, a review of the veteran's medical chart may be sufficient. The licensed independent VA mental health care provider will make a clinical determination as to which, if any, reassessments are necessary for participation, and whether such reassessments require a direct interaction (either in person, by phone or by telehealth) with the veteran. VA will make every effort to ensure that all screening is completed in a timely manner and as conveniently as possible for the veteran. As noted above, screening must be performed by VA mental health care providers and recommendations must be from VA providers or clinical teams; meaning, that if VA were unable to offer a screening within the designated access standards under 38 CFR 17.4040, that would not authorize the veteran to elect to receive care in the community. These screenings would not constitute the delivery of medical services under such access standards. This also means that the screening will impose no copayment obligation on the veteran. The screenings entail clinical decision making and the exercise of medical judgment, as may occur in a research study or other clinical programs. We note; however, that the pilot program is not a research study.
In the screening, VA providers will assess veterans for criteria that would suggest that participation in the pilot program may not be appropriate, including, but not limited to frequent aggressive behaviors or homicidal ideation that may make it unsafe for the veteran to be with a dog or co-morbid diagnoses that would make training with a dog difficult or not feasible (
The canine training model will have veterans engage in both basic obedience and other training of a dog, so that the dog may eventually become, in most cases, a service dog for another individual. Participating in the canine training may improve veterans' self-efficacy and increase their sense of purpose and self-worth. For example, participating veterans may work to train a dog to establish trust, build a relationship and practice socializing, and through that process, those veterans may better recognize and learn to optimally regulate their own emotional arousal to train the dog. These sessions are typically conducted in small group classes and will be overseen by a certified service dog training instructor. VA clinical staff will not accompany a veteran to attend canine training under the pilot program. The canine training sessions under the pilot program will typically meet once a week for 8 weeks, and participating veterans may work with multiple dogs and other veterans within their small group as a form of social engagement.
Section 2(b)(2) requires VA to ensure that the pilot program is carried out by not fewer than five VAMCs located in geographically diverse areas. In selecting the five pilot program sites, VA first considered the geographic proximity of VAMCs to accredited SDOs, because the nongovernmental entities that would provide the canine training under section 2(c) are further required to be an accredited SDO under section 2(d)(1). Section 2(j)(1) of the Act defines accredited SDO as an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 that: (1) Provides service dogs to veterans with PTSD and (2) is accredited by an accrediting organization with demonstrated experience, national scope and recognized leadership and expertise in the training of service dogs and education in the use of service dogs (as determined by VA). VA recognizes the expertise and national scope of the following two organizations that accredit SDOs under its regulations in 38 CFR 17.148(c)(1): Assistance Dogs International (ADI) and International Guide Dog Federation (IGDF). Between ADI-accredited and IGDF-accredited SDOs, only ADI-accredited SDOs provide the type of instruction discussed earlier. Therefore, VA considered the proximity of VAMCs to ADI-accredited SDOs, for purposes of identifying potential pilot program sites.
VA next considered VAMCs near ADI-accredited SDOs that expressed interest in participating in the pilot program for 5 years and would be able to conduct assessments and recommend veterans to the pilot program, as well as conduct other programmatic aspects of the pilot (such as data collection required under section 2(g)). Of the VAMCs that met the criteria above, VA then considered five sites that would be in geographically diverse areas, as required by section 2(b)(2). VA attempted to consider VAMCs that were in different Veterans Integrated Service Networks (VISN), which are VA's designated regional systems of care in the country. Given these factors, VA identified the following five VAMCs as the required pilot program sites under section 2(b)(2): Palo Alto, California; Anchorage, Alaska; Asheville, North Carolina; West Palm Beach, Florida; and San Antonio, Texas.
Section 2(c) requires VA to seek to enter into agreements with nongovernmental entities that VA determines can provide canine training under the pilot program, and section 2(d) establishes minimum required conditions to be included in any such agreements. Section 2(d)(1) further establishes that any agreements formed between VA and a nongovernmental entity will include a certification from the entity that it is an accredited SDO. We reiterate from the discussion earlier in this notice, in accordance with section 2(j)(1), as well as VA's knowledge and recognition of ADI-accredited SDOs providing service dogs to veterans with PTSD, that VA will seek to enter into agreements under section 2(c) with ADI-accredited SDOs. Because section 2 does not confer any grant or cooperative agreement authority under which VA may conduct the pilot program, VA has engaged directly with ADI-accredited entities that are located near the five VA pilot sites, to gauge interest and determine their ability to furnish canine training under the pilot, to include Dogs for Life; Paws for Purple Hearts; and Warrior Canine Connection. VA anticipates the agreements formed with these entities will establish that SDOs will furnish canine training as in-kind services. The agreements further will include all conditions as required under section 2(d) and additional terms necessary. VA is entering into this agreement with SDOs that have the experience necessary to provide this model of training. In this manner, the agreements would reflect VA's understanding that these SDOs provide canine training to veterans at no cost to veterans. VA does not envision forming agreements under section 2(c) that would create any additional cost for VA or the veteran in terms of payment for the canine training.
Section 2(e) establishes that a veteran who has participated in the pilot may adopt a dog that the veteran assisted in training as part of the pilot program, if the veteran and veteran's provider (in consultation with the SDO that provided the canine training under the pilot program) determine that it is in the best interest of the veteran. The language in section 2(e) establishes a permissive authority related to adoption of a dog and does not compel the provision of a dog to a veteran. ADI-accredited organizations that will be furnishing the canine training under the pilot program train and pair qualified service dogs with individuals with disabilities and do not necessarily participate in the adoption of dogs.
Because the adoption provision in section 2(e) is permissive, and because the ADI-accredited organizations that will furnish canine training under the pilot program may not necessarily participate in the adoption of dogs, VA will not implement the adoption provisions under section 2(e). Determinations about whether it is in the best interest of a veteran to adopt a dog extends beyond VA providers' scope of licensure, the VA Scope of Practice and their sphere of clinical expertise. This does not prevent any veteran from independently seeking to adopt a dog; however, such adoption would not be an adoption under section 2(e)(1). Any veteran seeking to be prescribed a service dog and subsequent service dog benefits, instead of merely adopting a dog, would have to be separately evaluated by VA under the criteria in section 17.148 and prescribed a service dog, prior to owning the dog, to be considered for service dog benefits.
The canine training under the pilot is not considered examination, treatment or care for purposes of qualifying for reimbursement or payment of beneficiary travel (BT) expenses, should a veteran eligible for BT benefits need to travel to receive the canine training. Although BT benefits will not be available for any travel that may be associated with the canine training under the pilot, we believe in many cases that veterans who would participate in the pilot will be able to transport themselves. Other
During the course of the pilot program, disagreements may arise regarding veteran participation. We anticipate that the vast majority of these disagreements will be subject to VA's clinical appeals process, as set forth currently in VHA Directive 1041,
Eligibility to participate in the pilot program is limited, by section 2(j)(2), to veterans who are: (1) Enrolled in the VA health care system; (2) diagnosed with PTSD; and (3) recommended for participation in the pilot program by a qualified mental health care provider or clinical team, based on medical judgment that the veteran may benefit from such participation with respect to the diagnosed PTSD of the veteran. While determinations of whether a veteran is enrolled in the VA health care system are administrative and not clinical, such matters are typically easily discernable and do not entail much dispute. Disagreements with administrative decisions are appealable to the Board of Veterans' Appeals. However, diagnosis of PTSD and a recommendation concerning the need for, and the appropriateness of, specific types of medical care and treatment, based on medical judgment, are decisions that are clinical in nature and therefore subject to the clinical appeals process in VHA Directive 1041.
Throughout the course of the pilot program, SDOs providing the canine training will have the discretion and authority to determine whether they will provide training to a veteran at a particular time. A veteran who is disruptive; incapable of or unwilling to follow directions; or presents a danger to themselves or others (including the dogs being trained) could be denied the ability to participate in the program on at least a temporary basis. In any of these situations, such information will be relayed to the pilot champion, who will coordinate with the provider or clinical team responsible for the initial recommendation for participation to determine if that recommendation is still applicable. If the provider's or team's medical judgment changes, based on this or any other information, such that they no longer recommend the veteran's participation, that decision would be a clinical decision appealable under VHA Directive 1041. If the SDO determines it will not or cannot provide the canine training for other reasons, such as limited resources or other constraints, the SDO and VA will attempt to ensure that eligible veterans who have been recommended for participation are able to do so at a later time. Participation will generally be granted on a first-come, first-served basis.
Denis McDonough, Secretary of Veterans Affairs, approved this document on March 23, 2022 and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
Veterans Benefits Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before May 31, 2022.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266–4688 or email
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
The following updates were made:
VA Form 21P–527EZ has been updated, to include:
• Updated instructions.
• Added an optional use Veterans Benefits Application Checklist for applicant's benefit to assist in organizing submission of claim
• Separated Section I and II to split Veteran's Identification Information from contact information
• Removed questions—How many times veteran married?/How many times Spouse married? as regulations allow
• Removed mailing address of nursing home or facility from Section VIII as this is covered in the Worksheet the claimant is directed to complete.
• Added an income source section and updated Section IX instructions to reflect this change.
• Added an Alternate Signer Certification and Signature (Section XIII).
• Restructured Worksheet for An Assisted Living, Adult Daycare, or a Similar Facility and the Worksheet for In-Home Attendant Expenses and questions removed for better clarity.
New standardization data points; to include optical character recognition boxes. This is a non-substantive change.
By direction of the Secretary.
Coast Guard, DHS.
Final rule.
In accordance with the statutory provisions enacted by the Great Lakes Pilotage Act of 1960, the Coast Guard is issuing new base pilotage rates for the 2022 shipping season. This rule will adjust the pilotage rates to account for changes in district operating expenses, an increase in the number of pilots, and anticipated inflation. In addition, this rule will make a policy change to round up in the staffing model. The Coast Guard is also making methodology changes to factor in an apprentice pilot's compensation benchmark for the estimated number of apprentice pilots. The Coast Guard estimates that this rule will result in a 7-percent increase in pilotage operating costs compared to the 2021 season.
This final rule is effective April 29, 2022.
To view documents mentioned in this preamble as being available in the docket, go to
For information about this document, call or email Mr. Brian Rogers, Commandant, Office of Waterways and Ocean Policy—Great Lakes Pilotage Division (CG–WWM–2), Coast Guard; telephone 202–372–1535, email
Pursuant to Title 46 of the United States Code (U.S.C.) Chapter 93,
In accordance with statutory and regulatory requirements, we employed a ratemaking methodology that was introduced originally in 2016.
As part of our annual review, in this rule we are establishing new pilotage rates for 2022 based on the existing methodology. The Coast Guard estimates that this rule will result in a 7-percent increase in pilotage operating costs compared to the 2021 season. There will be an increase in rates for all areas of District One and District Three, and for the undesignated area of District Two. The rate for the designated area of District Two will decrease.
These changes are largely due to a combination of three factors: (1) The addition of apprentice pilots to Step 3, “Estimate Number of Registered Pilots and Apprentice Pilots,” with a target wage of 36 percent of pilot target compensation (60 percent of the increase in revenue needed), (2) adjusting target pilot compensation for both the difference in past predicted and actual inflation and predicted future inflation (48 percent of the increase in revenue needed), and (3) a net reduction of 3 registered pilots at the beginning of the 2022 shipping season, representing the addition of 1 pilot for the undesignated area of District One due to rounding, the reduction of 2 pilots, and the addition of 1 pilot for the undesignated area due to rounding in District Two, and 3 retirements in District Three (an offsetting decrease representing −54 percent of the increase in revenue needed).
The Coast Guard is also making one policy change and one change to the ratemaking methodology. First, in the staffing model (Volume 82 of the
Based on the ratemaking model discussed in this rule, we are establishing the rates shown in table 1.
This rule will affect 51 United States Great Lakes pilots, 9 apprentice pilots, 3 pilot associations, and the owners and operators of an average of 293 oceangoing vessels that transit the Great Lakes annually. This rule is not economically significant under Executive Order 12866 and will not affect the Coast Guard's budget or increase Federal spending. The estimated overall annual regulatory economic impact of this rate change is a net increase of $2,154,342 in estimated payments made by shippers during the 2022 shipping season. This rule establishes the 2022 yearly compensation for pilots on the Great Lakes at $399,266 per pilot (a 5.37 percent increase over their 2021 compensation), adjusted for changes in inflation since the September 14, 2021 notice of proposed rulemaking (NPRM) for this final rule (
The legal basis of this rulemaking is 46 U.S.C. Chapter 93,
The purpose of this rule is to issue new pilotage rates for the 2022 shipping season. The Coast Guard believes that the new rates will continue to promote our goals, as outlined in 46 CFR 404.1, of promoting safe, efficient, and reliable pilotage service; facilitating commerce throughout the Great Lakes and St. Lawrence Seaway; protecting the marine environment; and generating sufficient revenue for each pilotage association to reimburse its necessary and reasonable operating expenses, recruit qualified mariners, retain experienced United States Registered Pilots, support staffing model goals in accordance with National Transportation Safety Board (NTSB) recommendations regarding pilot fatigue, and provide appropriate revenue to use for improvements.
In response to the NPRM for this ratemaking, the Coast Guard received six comment submissions. These submissions include one comment filed jointly by the Lakes Pilots Association, the Saint Lawrence Seaway Pilotage Association, and the Western Great Lakes Pilots Association (the Great Lakes Pilots' comment); one filed jointly by the Shipping Federation of Canada, the American Great Lakes Ports Association, and the United States Great Lakes Shipping Association (collectively, the Coalition); one from the president of the St. Lawrence Seaway Pilots' Association (SLSPA); one from the president of the Lakes Pilots Association (LPA); one from the president of the Western Great Lakes Pilot Association (WGLPA); and one from a retired United States Registered Pilot who provided pilotage service in District Three. As each of these commenters touched on numerous issues, for each response below we note which commenter raised the specific points addressed. In situations where multiple commenters raised similar issues, we provide one response to those issues.
The retired United States Registered Pilot in District Three commented that, while it is necessary to have enough staffing for association presidents to perform administrative duties without impairing pilotage service, he believes that doing so by always rounding up in the staffing model lacks a rational basis. He characterized the adjustment as essentially a random adjustment from +0.01 to +0.99 pilots, and while figures at the higher end of that range may result in enough additional staffing being available, figures at the lower end of that range would not.
The SLSPA commented that it believes the Coast Guard's decision to always round up the pilot numbers in the staffing model is a good step toward mitigating the impact of non-piloting duties on association presidents' workload. The WGLPA also supported the decision to always round up in the staffing model. They characterized the practice of always rounding up as providing some relief for the non-pilot responsibilities of presidents and providing a cushion for adequate staffing when unexpected injuries or illnesses occur, while rounding down would always leave the associations short-staffed. In support of rounding up, the WGLPA characterized it as “ridiculous” to acknowledge that a district has more demand for pilotage services than can be met by a specific number of pilots, and then round down to authorize that same inadequate number. The LPA also supported rounding up the number of pilots in the staffing model. The LPA were of the opinion that this approach still undercounts the need for staff, especially when the rounding is a small fraction, but does assist in addressing the need.
The Great Lakes Pilots' comment similarly noted that always rounding up the number of pilots in the staffing formula helps address the associations' staffing needs, but undercounts the need, especially when the rounding is a small fraction. It suggested that a dedicated position, in addition to rounding up, would be a better solution.
We disagree that rounding up the staffing model's final number to the nearest integer leads to an inadequate result or is a random adjustment. We also considered and rejected the alternative request to add a dedicated position. The Coast Guard's reasoning for always rounding up in the staffing model is as follows.
The staffing model focuses on the opening and closing of the shipping season. Weather conditions, ice coverage and formation, and the lack of aids to navigation have historically made it necessary to require double pilotage. Pilot association presidents do conduct a significant amount of piloting assignments and will continue to do so in the future, but during the opening and closing of the shipping season the pilot association presidents must coordinate with United States and Canadian agencies and numerous other stakeholders to facilitate commerce. Rounding up the pilot numbers in the staffing model is essential to provide some relief to accommodate the important non-piloting duties of the presidents.
Rounding up ensures that the Great Lakes and St. Lawrence Seaway have sufficient pilotage strength to safely and efficiently facilitate commerce at the opening and closing of the season. When a pilot president is not able to pilot full-time because of their facilitative role, they are essentially acting as a pilot on a less than full-time basis. However, the associations do not staff part-time pilots. In addition, when we round down the staffing model final number decimal as much as 0.49, we undercount the piloting needs for half a pilot. The part-time pilotage of the presidents, combined with the undercounted need of half a pilot from rounding down in the staffing model, could result in understaffing equivalent to the need for a full pilot. Rounding up to a whole pilot also provides added capacity when the association is short-staffed for unexpected reasons, such as a pilot's illness. It also ensures that the partial pilot indicated by the staffing model is actually provided to the district to satisfy the traffic demand.
The result of rounding up to the nearest integer is not random, as one commenter suggested, because the staffing model already shows a need for a partial pilot. Rounding up in the staffing model already occurs when the result for the number of pilots needed for the district has a decimal of 0.5 or greater, as with District Three's result of 21.55, which would round up to 22 pilots in any event.
Therefore, we believe that rounding up to a whole integer should sufficiently cover the need presented by the staffing model and pilot association presidents. In the staffing model calculations that we were already using, the demand for half of a pilot or more (0.50+) is rounded up to a whole integer. Rounding up the decimals incorporates some margin to account for the president who serves as pilot less than full-time due to their other oversight responsibilities.
We disagree that a dedicated position in addition to rounding up, as proposed, would be a better solution. Allowing an additional dedicated position for a pilot, in addition to rounding up, would surpass the need presented. The cost of adding an additional pilot slot for each of the three pilot associations, in addition to rounding up, would add three additional target pilot compensations (one in each district) to the operating expense base. We do not believe always allowing an additional pilot for each of the three pilotage associations is a reasonable expense, because we have determined that the need presented is satisfied by rounding up. Adding three permanent additional pilots to the ratemaking annually, in addition to rounding up, would overcount the need presented by the staffing model and the less than full-time pilotage provided by presidents. Therefore, we have determined that adding an additional slot for a pilot is not a necessary and reasonable cost to include in the ratemaking. We expect to include this topic and the staffing model as agenda items for a future Great Lakes Pilotage Advisory Committee (GLPAC) meeting.
The Coalition commented that it believes the decision to always round up in the staffing model is arbitrary and unsupported by evidence, as there is no data regarding the extent of the administrative burden on association presidents. It commented that the Coast Guard put off a decision on always rounding up in the 2021 final rule, pending additional research, but has not presented the results of that research. The Coalition suggested that the Coast Guard evaluate the real demand for administrative services, both in terms of the total hours required and the skills required to perform those tasks (so that a highly skilled pilot is not wasted on administrative work not requiring pilotage experience), and do so by district, in case the need is not consistent from district to district. The Coalition also asserted that, by always rounding up, the Coast Guard will effectively always provide one additional pilot in each of the three Great Lakes pilotage districts.
We disagree with the Coalition's comment. In the 2021 final rule, the Coast Guard did not adopt the proposed change to round up in the staffing model, noting we would “gather more information on the best way to address this issue, based on concerns raised by the commenters.” (86 FR 14190). The Coast Guard considered the concerns, information, and constraints discussed in the comments, as well as discussions with the interested parties, and believes the best way to address the pilot president being “off the roles” part of the time is by rounding up in the staffing model, based on the following facts and information.
The Coast Guard acknowledges that pilot presidents are still performing pilotage duties, as well as their nondelegable administrative oversight, and are essentially providing pilotage services on a less than full-time basis. During the annual GLPAC meeting on September 1, 2021, the association presidents discussed in detail their non-piloting duties and their piloting schedules. Attendees of the GLPAC meeting included the three association presidents, a representative for the shipping industry, a representative for the port operators, the Director of Great Lakes Pilotage, and several other members of the public, including pilots, industry representatives, and Coast Guard employees. The agenda topics for this meeting included stakeholder outreach and the staffing model used in the ratemaking methodology. The association presidents responded to inquiries regarding their stakeholder engagements over the last couple of years.
On pages 174–177 of the GLPAC transcript (available in the docket where indicated under the
Rounding up avoids the very real issue of understaffing where the staffing model already indicates that there is traffic demand and a need for pilots above the rounded-down integer. Adequate staffing is especially critical during the double-pilotage requirements that often occur during the opening and closing of the shipping season, when navigation is particularly challenging. During double pilotage, association presidents may be tasked with coordinating with agencies to facilitate commerce rather than providing pilotage. Because the staffing model focuses on the opening and closing season shipping demands, it could be detrimental to the Great Lakes shipping industry to provide fewer pilots than the number indicated by the staffing model.
In further response to the Coalition's comment, rounding up does not allocate pilot compensation costs toward the work of an administrative role. It is intended to cover the need for a partial pilot already demonstrated by the staffing model and the need presented by the president being off the rolls part of the time in order to perform tasks that cannot be delegated to a non-pilot. The Coast Guard may review the staffing model in a future rulemaking, and we would consider the factors suggested by the Coalition. By rounding down (up to .49 of a pilot), combined with the part-time service provided by the presidents, there is a clear discrepancy in how many pilots the staffing model says are needed and what is actually available to assist the shipping industry. Further, when compared with the prior staffing model, always rounding up to a whole integer only adds two additional pilots in this ratemaking, one in District One and one in District Two. In District Three, there is no additional pilot as a consequence of our change to the staffing model, because the prior staffing model would also have rounded up to a whole integer.
The general concerns raised by the Coalition in response to the previous 2021 NPRM were that an additional pilot was not necessary and could be filled by a lower-cost administrative assistant. We considered that
In addition, the Coast Guard took into consideration additional cost factors, such as where any additional pilots would be factored into the ratemaking if an extra pilot was authorized. The Coast Guard reviewed the options of placing that pilot in either the designated waters or undesignated waters for ratemaking purposes. Where the pilot would be allocated was not a consideration proposed in the 2021 ratemaking NPRM proposal for rounding up in the staffing model. In the interest of maintaining rate stability, while also considering the shipping industry's projections for pilotage demands, the 2022 ratemaking NPRM proposed placing the additional pilot in undesignated waters. Based on the alternatives considered, information provided to us by the commenters, and the information presented at the GLPAC meeting, the Coast Guard believes this is the best solution to ensuring there are enough pilots allocated to the districts at this time.
In past ratemakings, we have historically used the term “applicant pilots” as a collective way of referring to both applicant trainees and apprentice pilots. In each districts' operating expenses, the line item for applicant pilot salaries includes salaries for both apprentice pilots and applicant trainees. Beginning with the year 2022, we are adopting an apprentice pilot wage benchmark for funding all apprentices' salaries and will leave applicant trainees' salaries in the operating expenses. To help clarify this distinction, this rule adds definitions for the terms “apprentice pilot” and “limited registration” to the definition section in § 401.110.
An apprentice pilot is defined as a person, approved and certified by the Director, who is participating in an approved United States Great Lakes pilot training and qualification program and meets all the minimum requirements listed in 46 CFR 401.211. The apprentice pilot definition will not include applicant trainees, who are pilots in training who have not acquired the minimum service requirements in § 401.210(a)(1). Under this rule, salaries for applicant trainees will continue to be included in the district's operating expenses for the year they are incurred. The “apprentice pilot” definition will only be applicable in determining which pilots may be included in the apprentice pilot estimates, wage benchmark, and operating expenses discussed in new §§ 404.2(b)(7), 404.103(b), and 404.104(d) and (e) of this rule.
A limited registration is currently used in the apprentice pilot training process in the districts, but it is not defined in the Great Lakes pilotage regulations. We are adding a definition for “limited registration” that will align with the current use of the term in the industry. A limited registration is defined as an authorization given by the Director, upon the request of the respective pilot association, to an apprentice pilot to provide pilotage service without direct supervision from a fully registered pilot in a specific area or waterway.
The SLSPA commented that it believed that apprentice pilot compensation should not be restricted to apprentices with limited registration, because this creates a gap in compensation until the apprentices receive limited registration. The SLSPA suggested that this compensation should be given to “trainees” as soon as they enter training, for the purpose of attracting experienced mariners.
The Coast Guard agrees that apprentice pilots should be included in the compensation wage benchmark as soon as they achieve apprentice pilot status, which is as soon as they enter apprentice pilot training. In the initial proposal to apply this wage benchmark to apprentice pilots with limited registrations, we assumed that all apprentice pilots would have a limited registration. But the comments and additional information we received indicate that there is a potential for a few months to pass before the apprentice pilot actually receives the limited registration. We do not intend for there to be a gap before the wage benchmark becomes applicable. This wage benchmark was always intended to apply to all apprentice pilots, as applicants who progress through the training program will typically receive a limited registration. As a result, for ratemaking purposes, apprentice pilots with and without limited registrations will be considered equivalent. In this final rule, apprentice pilots with or without limited registration are included in Step 3 of the methodology, with a compensation of 36 percent of pilot target compensation. The projected number of apprentices needed for each district estimated in Step 3 of the methodology will not change. We estimated these numbers under the assumption that the apprentices would receive their limited registrations within the season.
The districts will continue to be reimbursed for all necessary and reasonable costs associated with applicant pilots (“trainees” as the commenter refers to them), via the operating expenses portion of the methodology, 3 years after the costs have been incurred. The Coast Guard intends to keep costs associated with applicant pilots under the heading of recognized expenses in recognition of the fact that it is harder to accurately predict the number of applicants newly joining a program as opposed to apprentices, who must have already applied, been accepted, and started their training. To ensure the accuracy of this estimate going forward, the Coast Guard will continue to track the progress of applicants as they are accepted into programs and shift into apprentice roles, as well as the progress of apprentices toward becoming fully registered pilots.
A retired U.S. Registered Pilot in District Three commented that the Coast Guard made an incorrect statement when it said that the previous use of the 36-percent benchmark for apprentice pilots compensation was not opposed in the 2019 ratemaking. He also commented that he believed the administrative record does not support the decision to only allow 36 percent of target compensation. The LPA also disagreed with the 36-percent benchmark for apprentice pilots with limited registration, characterizing it as inadequate. The LPA's comment further stated that they consistently pay 75 percent of target pilot compensation for first-year apprentice pilots, 85 percent for second-year apprentice pilots, and 95 percent for third-year apprentice pilots; that this amount allows them attract and retain the most qualified mariners; and that they have operated this way for over 30 years.
We disagree with the retired pilot commenter and the LPA and respond to these comments with a recount of the 2019 administrative record and a discussion of why we determined that the 36-percent figure is reasonable.
In years prior to the 2019 ratemaking, we authorized a $150,000 surcharge to cover apprentice pilot compensation. The surcharge included both apprentice pilot wage benchmarks and expenses. In the 2019 ratemaking final rule, we explained that there was no cap on the apprentice pilot surcharges allowed to be collected in the operation expense year for 2016, and that the amounts actually collected totaled more than the 2016 surcharge percentage was
When determining what is a necessary and reasonable apprentice pilot wage benchmark, the Director considers many factors, including past practices and a comparison of the expenses incurred by other districts for similar services. In developing the 2019 ratemaking, the Coast Guard reduced District Two's expenses to align with those of the other districts, which also closely aligned with the amount of the surcharges authorized in the years 2016 through 2018. Although we previously authorized $150,000 per apprentice pilot, two of the districts did not have actual apprentice pilot wage expenses above $128,000. Setting the apprentice pilot wage benchmark at 36 percent is both consistent with what we have authorized in the past 4 years and reasonable in consideration of what the districts actually paid.
Although the average compensation per apprentice for District Two exceeded the apprentice pilot salaries in the other districts, we have never allowed a district to claim more in apprentice pilot salaries simply because they have paid more than other districts. The Coast Guard will continue this practice of allowing up to a certain amount, using the 36-percent target for all districts. In any case, we believe it would be unfair to allow each district to claim a different amount of apprentice pilot salaries in the ratemaking. Similarly, we do not set different target pilot compensation amounts for each district. Doing so could disproportionately affect the ratemaking, lead to significant changes in the rates, and set a precedent that is unpredictable for all parties. It is consistent with past ratemakings to authorize the same apprentice pilot compensation in each district, because the $150,000 per apprentice previously authorized with the surcharge was the same for all districts, which is one reason why we adjusted District Two's apprentice pilot salaries in 2019 to the 36 percentage mark. Since then, we have determined that 36 percent is reasonable, based on actual expenses and the predictability it provides.
In addition, the Director also considers the associations' success with pilot retention and recruitment of qualified mariners. As noted above, the 36 percent apprentice pilot wage benchmark is consistent with what we have authorized in expenses in the past several ratemakings. The comments from the pilot associations did not present any actual inability to recruit and retain qualified apprentice pilots based on the past 4 years of allowable expenses. This is why we believe continuing this rate would be sufficient to ensure adequate apprentice pilot recruitment and retention, as long as the associations are able to recruit and retain apprentices.
The Great Lakes Pilots' comment noted that apprentice pilots and applicant trainees are highly trained mariners and, however their compensation is accounted for, they cannot be expected to work for significant periods of time without adequate compensation. The Great Lakes Pilots' comment supported establishing a clear understanding ahead of time as to what amounts the Coast Guard will approve for pilotage services, and requested that the approved amounts be accurate and not subject to after-the-fact adjustments.
The Great Lakes Pilots' comment suggested that the proposed apprentice pilot wage benchmark would be a better model for funding salaries for applicant trainee pilots than currently provided, and that the apprentice pilot wage benchmark should be structured in a manner more akin to the fully registered pilot target compensation. It further suggested that the wage benchmark should reflect the difference between an applicant trainee accumulating time and training trips and an apprentice pilot who is actually moving the vessel and generating revenue as the pilot of record.
As indicated above, we have determined that the 36-percent figure is a reasonable wage benchmark for apprentice pilots, based on actual expenses, historic data that indicates adequate apprentice pilot recruitment and retention, and the predictability it provides all parties involved. This wage benchmark is meant to cover wage expenses for apprentices that cannot otherwise be recouped. In instances where the apprentice pilot is operating as the pilot of record, shippers are being charged the rate of a registered pilot and, therefore, the district is able to recoup earnings to compensate the apprentice over the wage benchmark. By building the target apprentice pilot wage benchmark into the rate, the Coast Guard ensures that apprentice pilot wage benchmark will be appropriate and predictable moving forward and eliminates the need to adjust past expenses (once expenses are based on years where apprentices are built into the rate). The Coast Guard will only adjust past recognized apprentice pilot expenses for years that preceded the implementation of including apprentice pilots in Step 3 of the methodology. Adjustments will continue to be made through the 2025 ratemaking, which will use 2021 operating expenses as the basis.
The Coast Guard will continue to classify the necessary and reasonable applicant trainee salaries and benefits as recognized operating expenses going forward. The Coast Guard has opted not to use a wage benchmark approach for funding applicant trainee salaries because it could result in inaccurate compensation to the districts. Applicant trainees may only be training for part of a shipping season, because they can be brought on at any point or they may be promoted to apprentice pilots. Continuing to rely on the districts' actual operating expenses for applicant trainee salaries will ensure the Coast Guard allows a necessary and reasonable amount to be included in the ratemakings.
The WGLPA indicated that it supported the compensation methods for applicant and apprentice pilots proposed in the NPRM, noting that it is unreasonable to expect applicant and apprentice pilots to endure financial and personal hardship to join the pilot associations, and that these compensation methods are required to ensure that the best mariners continue to join the piloting ranks. The WGLPA requested that the applicant trainee compensation methods be implemented beginning with the 2022 rates, and criticized the 3-year lag in recouping those apprentice pilot wage operating expenses under the previous method.
The Coast Guard confirms that the apprentice pilot wage benchmark process in Steps 3 and 4 will start with this 2022 ratemaking. This was our intent when we proposed the change in the NPRM. As we stated in the NPRM, necessary and reasonable apprentice pilot salaries incurred in years 2019 through 2021 will also be reimbursed in the operating expenses included in ratemakings 2022 through 2024, because they have not yet been reimbursed in any way in the ratemakings.
The Coalition's comment requested that we set the apprentice pilot wage benchmark at a flat $150,000 surcharge for wages, benefits, and expenses, rather
We disagree. Under the surcharge scheme, during periods of high traffic and pilotage demand, the apprentice would receive less money for wages because the costs associated with transportation, lodging, and other per diem expenses would increase. Conversely, during slow periods, the opposite would occur. The surcharge wage scheme would likely have a negative impact on apprentice retention because wages would be lowest during the highest demand periods.
The Coast Guard believes that the 36-percent wage benchmark for apprentice pilots is equally transparent because the calculations will be included in every ratemaking, and the percentage will not change year to year. Furthermore, in past years, the districts have collected more surcharge proceeds than intended, requiring subsequent Director's adjustments. The apprentice pilot benefits and expenses will continue to be line items in the expense reports, which are made available in the docket for this rulemaking. We also believe that setting the wage benchmark as a percentage of target pilot compensation is a better approach, because it captures the inflation adjustment that is performed on the target pilot salaries. A set surcharge would not take inflation into account as easily and would need adjusting year to year.
The Great Lakes Pilots' comment requested that the Coast Guard conduct the third-party expense and revenue review earlier in the year, because holding the audit in October and November results in it being scheduled during their busiest shipping months, which is also when comments are generally due on the annual ratemaking NPRM. The SLSPA and LPA both made similar requests individually.
The annual audit is performed to ensure the Coast Guard can obtain accurate operating expenses and revenues for ratemakings. The timing of the audit is not specified in the regulatory text of the ratemaking methodology. Although shipping is cyclical, and no one can be certain which months will be busy due to the dynamic nature of commodity demand, the Coast Guard will work with the association presidents to find a timeframe to conduct the third-party reviews that best suits all parties involved.
The Great Lakes Pilots' comment argued that disallowing legal expenses for claims against the federal government arbitrarily and capriciously excludes expenses that are regularly allowed to all businesses under Internal Revenue Service (IRS) regulations.
The Coast Guard did not propose any changes to the treatment of legal expenses as operating expenses in the NPRM. The 2021 ratemaking final rule excluded legal fees against the Coast Guard related to our ratemaking responsibilities, and our response in that rule (46 FR at 14193, March 12, 2021) still applies here. We distinguished the IRS regulation from the pilotage associations' expenses, as the Equal Access to Justice Act and settlement terms often provide for reimbursement of the pilots' legal fees when the pilots prevail. In those cases, a court can determine a reasonable amount of legal fees to reimburse the pilot association. When a pilot association does not prevail on the merits, the legal fees associated with that lawsuit are, arguably, per the court's determination, not necessary for the safeguarding or production of its income. If allowed, those legal fees would inflate the pilot associations' operating expenses and, subsequently, the shipper's rates. Unlike other businesses and jurisdictions, shippers on the Great Lakes do not have the option to purchase service from another firm if they disagree with a firm's business practices, and may not have the choice to not purchase the service, because pilotage service is required for all foreign vessels and domestic vessels operating on register.
On the other hand, the Coalition's comment asserted that all pilot association legal fees related to rate setting should be excluded, including cases where the pilots intervene on behalf of the Coast Guard. The Coalition asserted that including the intervener legal fees means industry may have to pay the pilots' legal fees if the pilots challenge a Coast Guard decision, no matter how the challenge turns out, which discourages legal challenges from industry and unfairly favors the Coast Guard.
As we mentioned above, we did not propose any changes to the treatment of legal fees in determining pilot association operating expenses in the NPRM to this final rule. Necessary and reasonable legal fees that are not incurred in cases against the Coast Guard are still permitted as operating expenses, because we did not have the same basis to remove them from the operating expenses. As we stated in the 2021 final rule (86 FR 14193), pilots often have a legitimate interest in the outcome of lawsuits initiated by the shippers against the Coast Guard. Thus, the court may allow the pilots to intervene in the case to protect their own interests. The Coast Guard does not have the same justification to exclude these intervener legal expenses, because these expenses are not eligible for reimbursement under the Equal Access to Justice Act or via settlement with the Coast Guard. These legal fees incurred by pilot associations are not otherwise reimbursed by a more responsible party, so we must consider these costs of providing services in the rates per our statutory mandate. The exclusion of legal fees for pilots' cases against the Coast Guard is effectively a small benefit to the shippers, because it removes that financial responsibility from the ratemaking and places it on the responsible regulatory agency. We do not intend or predict that exclusion of legal fees will incentivize pilots to intervene in the Coast Guard's defense.
The LPA commented that they did not agree with the 2019 license insurance total ($1,825) included in Other Pilotage Costs or the applicant health insurance total ($200) included in Applicant Pilotage Costs. These totals were included in table 16—2019 Recognized Expenses for District Two in the NPRM (86 FR at 51061). In its comment (and in an attached letter from its certified public accountant), LPA said these numbers should be $21,267 for license insurance total and $31,763.96 for applicant health insurance total.
CohnReznick, an independent accounting firm, reviewed the letter LPA's accountant provided with the comment and the association's expense reports provided in 2019. CohnReznick's official conclusion is available in the docket for this rulemaking. With that independent accountant review, the Coast Guard determines that the license insurance total of $1,825 is correct but was labeled incorrectly, so that the additional amount claimed in the comment was included in another line item. LPA is aware of this conclusion and concurs with it. After review of the applicant health insurance total, the Coast Guard determines that the figure of $200 for applicant health insurance in the NPRM was incorrect. We have updated the recognized expenses to reflect $31,764 for applicant health insurance, in
The Coast Guard estimated in the 2022 NPRM that District Two would have 16 fully working pilots based on the information we had at that time. The staffing model allows for a maximum of 16 working pilots after rounding up. In this final rule, we now estimate the number of fully working pilots in District Two to be 14. As a result, we are reducing the number of estimated fully working pilots in Step 3. Section 404.103 requires the Director to project the number of pilots expected to be fully working and compensated, based on the number of persons applying to become United States Registered Pilots and on information provided by the district's pilotage association. Only pilots who are expected to be fully working and compensated are permitted to be included in this estimate. Our justifications for removing two pilots from District Two's NPRM's projected numbers are as follows.
One of the pilots serving under a temporary registration performed part-time pilotage for the year of 2021. One pilot performed substantially less than the average assignments per pilot projected in the 2017 staffing model (82 FR 41466, table 5) for District Two, according to the official piloting trip records used by the pilotage association and the Coast Guard. Based on the information available to the Coast Guard at the time of this final rule, and information provided by the association, there is no indication that the pilot will perform pilotage on a full-time basis in the 2022 shipping season. Therefore, based on the information available to us now, we cannot authorize this pilotage position because we do not expect the pilot to be fully working and compensated in 2022.
Additionally, based on a statement from District Two that one apprentice pilot would be brought on as a fully registered pilot at the end of 2021, we estimated in the NPRM that there would be a 16th pilot in District Two for the 2022 shipping season. However, after the NPRM was published, the Director was made aware that the apprentice pilot will not be brought on as a registered pilot.
The WGLPA commented that, in 2019, they had 6 pilots assigned to designated waters, 13 pilots assigned to undesignated waters, 5 applicant pilots for the entire season, and another applicant pilot beginning September 23, 2019. They expressed concern that the expenses for the five applicant pilots do not flow through the ratemaking process. Further, the WGLPA questioned the Director's adjustment of $746,802 (surcharge collected in 2019 for applicant pilots), stating that they were unsure where that number came from and if it was correct.
After review, the Coast Guard has determined that, although District Three was allowed four applicant pilots for the 2019 season, it actually had five. This fifth applicant was approved by the Director. This additional pilot removes the need for the Director's adjustment of $1,921 for excess applicant salaries paid. District Three reported $520,158 in expenses for the salary of five applicant pilots, meaning the district paid an average of $104,032 per applicant, which is below the $129,559 target for 2019.
Additionally, the WGLPA commented that the Coast Guard should work with WGLPA to determine the need for additional pilots in the fiscal year 2022 rate because of an expected increase in the number of cruise ships (possibly in excess of 6,000 bridge hours in District Three) that may or may not materialize due to COVID–19 impacts on the cruise industry, the retirement of three pilots, and the unexpected retirement of another three pilots due to COVID–19.
While we were developing the NPRM, WGLPA stated that they would have a need for 22 pilots in 2022. This is the same number of pilots they had in the 2021 ratemaking. However, our current records, and pages 154 and 155 of the transcript of the September 1, 2021 GLPAC meeting (available in the docket for this rulemaking), indicate that District Three will not have 22 pilots for the beginning of the 2022 shipping season. Based on our numbers, which we track routinely, and the statements made by the WGLPA president during the GLPAC meeting, this group will have 19 pilots and 5 apprentice pilots at the beginning of the 2022 shipping season. If the district plans to hire additional pilots, we expect that these additional pilots will start as applicants, and their salaries will be reimbursable as operating expenses 3 years from the time of hire. The Coast Guard will continue to monitor pilotage demands and consult with WGLPA during the 2022 shipping season.
The Coalition's comment requested the Coast Guard begin a safety and efficiency study of pilotage on the Great Lakes to identify measures to improve cost-effectiveness. The Coalition observed that, during five of the last seven years, the Coast Guard has proposed a double-digit percentage increase for pilot services, and the cost-per-pilot has gone from $352,777 to $543,615.
We disagree with the Coalition's suggestion regarding the study. The United States Government Accountability Office (GAO) completed a comprehensive review of the United States Coast Guard Great Lakes Pilotage Program in 2019. The GAO's final report, “Stakeholders' Views on Issues and Options for Managing the Great Lakes Pilotage Program,” is available in the docket for this rulemaking.
We plan to evaluate the staffing model in a future rulemaking, per GLPAC's recommendation at its September 1, 2021 annual meeting. We are currently reviewing the regulations in 46 CFR part 400 to make necessary updates and enhance efficiency. The Coast Guard will consider measures to improve cost effectiveness within those future actions. We welcome information that could improve the regulations, ratemaking, and staffing model via comments or GLPAC meetings.
With regard to the substantial increases noted by the Coalition over the past 7 years, these increases have been due to the reimbursement of operating expenses, the need to account for inflation, the hiring of additional pilots, the need to address the problem of pilot retention, and deficiencies resulting from the past methodology. The deficiencies in the older methodology created issues with retaining pilots; unnecessary delays to vessel traffic; significant revenue shortfalls for necessary improvements to property, pilot boats, and assets; and reduced maritime safety. In recent years, the Coast Guard has increased the
In recent years, demand for pilotage service has increased and diversified. Historically, international dry-bulk commodity shippers accounted for nearly 95 percent of pilotage demand. More recently, the Canadian domestic fleet has voluntarily employed United States Registered Pilots, including during the winter months when the locks are closed. Additionally, petroleum tankers and cruise ships have consumed significant pilotage service. At least one foreign trade vessel has remained in the Great Lakes and required pilotage service throughout the year. This increase in pilotage demand has increased operating expenses and required the Coast Guard to increase staffing. These staffing levels are necessary to promote safe, efficient, and reliable pilotage service in order to facilitate commerce and protect the marine environment.
The Coalition submitted a comment asserting that, in the interest of transparency and good governance, the Coast Guard should require pilot associations to make compensation levels of individual pilots public. The Coalition noted that one district voluntarily released this information prior to 2016, suggesting there is no reason why this information could not be released. The Coalition further suggested that public disclosure of individual pilot compensation is necessary to determine whether the Coast Guard's changes to the methodology in 2016 to address recruitment and retention concerns were successful.
The Coast Guard disagrees with the Coalition's recommendation to make compensation levels of individual pilots available to the public. The Coast Guard does not include the compensation of individual pilots in the expense base or methodology and, therefore, declines to add a regulatory requirement for pilot associations to publicly report the compensation of individual pilots. The Coast Guard does not use the actual earnings or even average earnings; we use a target pilot compensation, described in Step 3 of the existing methodology, which we have determined to be reasonable and necessary. Because actual salary values are not used in the ratemaking, we believe that a requirement to report pilot compensation is not in the public interest or necessary to provide for the costs of services. Progress toward pilot retention can be reviewed through other means, such as pilot turnover and the association's ability to promptly fill pilot vacancies for fully registered pilots and apprentice pilots.
The Coast Guard has solved the recruitment and retention challenges. We believe the Coalition's proposal would unnecessarily discourage qualified mariners from applying to, and experienced United States Registered Pilots from staying with, the United States Great Lakes pilot associations. The pilots have stated on numerous occasions that they do not want this personal information shared with the public. The Coalition has not identified the maritime safety issue their proposal would address or improve.
As the Coalition noted, the release of this information prior to 2016 was entirely voluntary on the part of one association. We do not intend to deviate from our precedent and require the associations to publish a list of their salaries.
For 2022, the Coast Guard is making one policy change to the ratemaking model, and a methodological change to the ratemaking methodology. First, we are instituting a practice of always rounding up the pilot totals to the nearest whole number in the staffing model. We use the staffing model in Step 3 to determine how many pilots are needed. Second, in Steps 3 and 4 of the methodology, we are introducing a wage benchmark calculation for apprentice pilots conducting pilotage. This rule will also codify the current practice of allowing pilot associations to include necessary and reasonable apprentice pilot benefits and expenses as operating expenses for the year they are incurred.
Table 2 summarizes the changes between the NPRM and this final rule. In the NPRM we proposed to only apply the wage benchmark to apprentice pilots with limited registration, but in this final rule will apply it to all apprentice pilots, with or without limited registration. Doing so will avoid a potential gap in compensation before an apprentice pilot receives a limited registration. This will not change the projected number of apprentice pilots compensated in each district, because, in the NPRM rate calculation, we assumed that all apprentice pilots would receive limited registration within the season.
The Director uses the staffing model to estimate how many pilots are needed to handle shipping from the opening through the closing of the season. The Coast Guard is changing the staffing model in § 401.220(a)(3) to always round up the final number to the nearest whole integer, instead of the current requirement to round to the nearest whole integer. The final number provides the maximum number of pilots authorized to be included in the ratemaking for a district.
In addition to always rounding up from the staffing model, we also specify that when the rounding up results in an additional pilot that would not have been authorized if we rounded to the nearest whole integer, that additional pilot will be added to the maximum number of pilots in the undesignated area for that district.
The reason for placing the additional pilot in undesignated waters is to reduce the impact of the additional pilot on the final rates. Allocating additional pilots to the undesignated waters in the ratemaking methodology will result in only incremental changes, which promotes rate stability. Rate stability is in the public interest, because it provides greater predictability to both shipping companies and the pilots. Undesignated waters have lower rates for pilotage services than designated waters, because the average number of bridge hours (denominator) is greater, which allows the operating expenses for those areas to be spread out over a greater number. Registered pilots in a district perform pilotage in both designated and undesignated waters. For ratemaking purposes, we assign pilots to either designated or undesignated waters to calculate the rates in each area.
Based on the existing staffing model, and the change to always round up the final number, the number of pilots authorized will not decrease in future years, unless the staffing model is adjusted by ratemaking. We acknowledge that the pilot associations' presidents are not able to serve as pilots full-time due to their administrative duties, and this continues to be the main reason for no longer rounding down the final number for some districts. The nondelegable administrative duties that require pilotage expertise include attending meetings and conferences with stakeholders, overseeing and ensuring the integrity of their training program, evaluating technology, and coordinating with the American Pilots' Association (APA) to implement and share best practices. Rounding down to the nearest integer in the current staffing model could result in too few pilots allocated to a district which, when coupled with the president's spending less time serving as pilot, may adversely impact recuperative rest goals for registered pilots that are essential for safe navigation.
The staffing model addresses the historic traffic at the opening and closing of the season. During this time, the Director has historically authorized or imposed double pilotage in the designated waters because the transits are likely to exceed the Coast Guard's tolerance for safety with a single pilot due to ice conditions, a lack of aids to navigation, and severe winter weather conditions. Pilotage demand reaches peaks during the opening and close of the seasons, which is also when pilot presidents are performing many nondelegable duties. The pilot association president's participation is required during various coordination meetings at the opening and closing of the shipping season, which reduces their availability to provide pilotage services. These meetings include coordination with the SLSDC in the United States and the St. Lawrence Seaway Management Corporation (SLSMC) in Canada, the Canadian Great Lakes Pilotage Authority (GLPA), the Shipping Federation of Canada, the United States Great Lakes Shipping Association, various United States and Canadian Great Lakes ports, and other stakeholders. Rounding up will ensure that the pilot president is free to participate in these meetings and the associations have sufficient strength to handle the burden of double pilotage.
We cannot continue to round down for some districts and undersupply pilots where the staffing model indicates more pilots are needed. By rounding up the staffing model final number, we ensure that we are always authorizing a sufficient number to cover the demand calculated according to the staffing model, which has been in place for many years. The staffing model takes into account the high demands during the open and close of the shipping season, where weather and ice conditions may result in double-pilotage requirements and higher demand for pilot services. The purpose of always rounding up where we otherwise would have rounded down is to account for the association's president time spent away from pilotage duties, especially during the high demand for pilotage during the beginning and close of the shipping
In this rule, the Coast Guard will factor in the apprentice pilots wage benchmark in the ratemaking methodology, at Steps 3 and 4. The wage benchmark will be applicable to apprentice pilots and apprentice pilots operating under a limited registration.
In Step 3, § 404.103, the Director will project the number of apprentice pilots and apprentice pilots with limited registrations expected to be in training and compensated. The Director will consider the number of persons applying under 46 CFR part 401 to become apprentice pilots, as well as traffic projections, information provided by the pilotage association regarding upcoming retirements, and any other relevant data.
In Step 4, § 404.104, the Director will determine the individual apprentice pilot wage benchmark at the rate of 36 percent of the individual target pilot compensation, as calculated according to Step 4. The Director will determine each pilot association's total apprentice pilot wage benchmark by multiplying the apprentice pilot wage benchmark by the number of apprentice pilots and apprentice pilots with limited registrations projected under § 404.103. For example, if the projected number of apprentice pilots is 4, we first take 36 percent of individual target pilot compensation (example: $359,887 × 0.36 = $129,559) and multiply that by 4 (example: $129,559 × 4 = $518,237) to obtain the total apprentice pilot wage benchmark for the district. This process is based on the way we factor the fully registered pilot compensation into the ratemaking in existing Step 3 (§ 404.103) and Step 4 (§ 404.104).
The Coast Guard will set the apprentice pilot wage benchmark at a percentage of the target pilot compensation, rather than a specific dollar amount, to allow for inflation each year. We factor inflation into the target pilot compensation calculation during Step 4. We take 36 percent of the inflated target pilot compensation to obtain the apprentice pilot wage benchmark value.
In ratemaking years 2016 through 2019, the Coast Guard authorized surcharges to cover the districts' apprentice pilot compensation. The Coast Guard never intended to use such surcharges as a permanent solution for compensating apprentice pilots, because the surcharge amounts were not derived from a formula that could take into consideration inflation and other reasonableness factors.
The purpose of the surcharges was to provide reimbursement to the associations so that they could immediately hire additional apprentice pilots, rather than waiting 3 years to be reimbursed in the rates. The Coast Guard used surcharges as a temporary method to help the districts with pilot hiring and retention issues. In those ratemaking years, the Coast Guard made many Director's adjustments to the authorized surcharges, in order to ensure that the ratemaking reflected a reasonable amount in compensation.
In the 2020 and 2021 ratemakings, the Coast Guard acknowledged that the pilot associations were able to hire a sufficient number of apprentice pilots and fully registered pilots, and authorized apprentice pilot salaries to be included in the association's operating expenses for 2017 and 2018, respectively. We allowed the apprentice pilot wage expenses to be included in the operating expenses after the districts' operating expenses were fully audited. In the 2021 ratemaking final rule, the Coast Guard reduced the 2018 apprentice pilot salary operating expense (referred to as applicant pilot in the 2021 ratemaking) for District One and District Two to $132,151 per apprentice pilot because they paid in excess of that amount (86 FR 14184, 14197, 14202, March 12, 2021). As District Three reported paying their apprentice pilots less than $132,151 per apprentice pilot each, no Director's adjustment was made.
The Coast Guard set the apprentice pilot wage benchmark at 36 percent of individual target pilot compensation based on reasonable amounts previously allowed in past ratemakings. In the 2019 rulemaking, we adjusted apprentice pilot salaries to approximately 36 percent of target pilot compensation. In the 2019 NPRM, the Coast Guard proposed to make an adjustment to District Two's request for reimbursement of $571,248 for two applicant pilots ($285,624 per applicant). Instead of permitting $571,248 for two applicant pilots, we proposed allowing $257,566, or $128,783 per applicant pilot, based upon discussions with other pilot associations at the time. This standard went into effect in the final rule for 2019. In the development of the 2021 proposed rule, we reached out to several pilot associations throughout the United States to see what percentage they pay their apprentice pilots. We factored in the sea time and experience required to become an apprentice pilot on the Great Lakes and discussed the percentage with each association to determine if it was fair and reasonable. For 2019, this was approximately 36 percent ($128,783 ÷ $359,887 = 35.78 percent). In the 2021 NPRM and final rule, the Coast Guard used the 36-percent benchmark for calculating each district's apprentice pilot wage benchmark in its operating expenses.
Going forward, we will authorize an apprentice pilot wage benchmark in the ratemaking to support hiring and retention in a way that is better calibrated to generate the specific amount of revenue needed than by assessing a surcharge. The associations will be funded for apprentice pilot wage benchmarks in the same year they are incurred, and the amount will be adjusted for inflation along with the target pilot compensation. We are also interested in building the apprentice pilot wage benchmark into the ratemaking for predictability and stability purposes. We previously authorized $150,000 per apprentice pilot when we used surcharges, but, in practice, that amount was reduced by Director's adjustments to reasonable and necessary amounts when compared to what others paid in the maritime industry per § 404.2(a). The apprentice pilot wage benchmark in the ratemaking will not be adjusted by Director's adjustments.
Some comments urged the Coast Guard to consider setting the apprentice pilot wage benchmark at a higher percentage than 36 percent of the fully registered pilot compensation, or implementing a gradual percentage increase for additional years served. This 36 percent equation creates a number consistent with what some districts paid and were reimbursed for apprentice pilots in previous ratemaking years. It is also reasonable in amount because it will cover only a wage benchmark and will not include apprentice pilot benefits and travel reimbursements. Those additional benefits will be reimbursed in full as allowable operating expenses for the districts. In the 2021 ratemaking, District Three reported paying apprentice pilot wages at an amount of $132,151 per apprentice pilot. At a wage benchmark of 36 percent of registered pilot target compensation, the apprentice pilots will be authorized wages in the amount of $129,559, which is reasonable in consideration of the time in training, services provided, and past ratemakings. This number will be subject to inflation annually. Additionally, setting the apprentice pilot wage benchmark at one amount,
Compensating the apprentice pilots for performing pilotage services has historically been considered a reasonable and necessary cost included in the ratemakings as either surcharges or operating expenses. Instead of evaluating the apprentice pilot salaries annually for reasonableness in the operating expenses, the Coast Guard will include a specific and predictable apprentice pilot wage benchmark calculation into the ratemaking.
In § 404.2, “Procedure and criteria for recognizing association expenses,” we insert the pilot association's expenses for apprentice pilots and apprentice pilots operating with limited registrations as approved operating expenses. These expenses have historically been allowed in previous ratemakings' operating expenses. With this final rule, we specifically list apprentice pilots' and apprentice pilots' with limited registrations expenses in the regulations to codify current practices and distinguish these expenses from the apprentice pilot wage benchmark that we include in Step 4 of the ratemaking methodology.
The associations will continue to include necessary and reasonable health care, travel expenses, training, and other expenses incurred on behalf of apprentice pilots and apprentice pilots with limited registrations, when determined to be necessary and reasonable by the Director. Associations currently fund travel and employment benefits for apprentice pilots in order to train pilots and provide pilotage services to the shipping industry. Apprentice pilots are expected to travel and be away from home while performing these duties. It is reasonable and consistent with industry practice for the association to cover their travel expenses. These travel costs are also allowed for fully registered pilots operating on the Great Lakes performing substantially similar services.
The approved operating expenses could include health care and other necessary and reasonable employment benefits as well. Apprentice pilots are often offered benefits to help with retention and recruitment. Allowing associations to include necessary and reasonable expenses for apprentice pilots and apprentice pilots with limited registrations as operating expenses in the ratemaking will continue to promote adequate funding for apprentice pilot training and provision of pilotage services in the Great Lakes.
In this final rule, based on the policy changes described in the previous section, we will implement new pilotage rates for 2022. We will conduct the 2022 ratemaking as an “interim year,” as was done in 2021, rather than a full ratemaking, as was conducted in 2018. Thus, the Coast Guard will adjust the compensation benchmark following the procedures for an interim ratemaking year in § 404.100(b), rather than the full ratemaking year procedures in § 404.100(a).
This section discusses the rate changes using the ratemaking steps provided in 46 CFR part 404, incorporating the changes discussed in section V of this preamble. We will detail all 10 steps of the ratemaking procedure for each of the 3 districts to show how we arrived at the new rates.
Step 1 in our ratemaking methodology requires that the Coast Guard review and recognize the previous year's operating expenses (§ 404.101). To do so, we begin by reviewing the independent accountant's financial reports for each association's 2019 expenses and revenues, which are available in the docket for this rulemaking. For accounting purposes, the financial reports divide expenses into designated and undesignated areas. For costs accrued by the pilot associations generally, such as employee benefits, for example, the cost is divided between the designated and undesignated areas on a
Adjustments have been made by the auditors and are explained in the auditor's reports, which are available in the docket for this rulemaking.
In the 2019 expenses used as the basis for this rulemaking, districts used the term “applicant” to describe applicant trainees and persons who are called apprentices (applicant pilots) under the new definition in this rulemaking. Therefore, when describing past expenses, we use the term “applicant” to match what was reported from 2019, which includes both applicant trainees and apprentice pilots. We use “apprentice” to distinguish the apprentice pilot wage benchmark and describe the impacts of the ratemaking going forward.
There was one Director's adjustment for District One, a deduction for $282,015, the amount of surcharge collected in 2019. As this amount exceeds the reported 2019 applicant salaries of $227,893, there is no further Director's adjustment. We continue to include applicant salaries as an allowable expense in the 2022 ratemaking, as it is based on 2019 operating expenses, when salaries were still an allowable expense. The apprentice salaries paid in the years 2019, 2020, and 2021 have not been reimbursed in the ratemaking as of publication of this rule. Applicant salaries (including applicant trainees and apprentice pilots) will continue to be an allowable operating expense through the 2024 ratemaking, which will use operating expenses from 2021, when the salaries for apprentice pilots were still authorized as operating expenses. Starting in the 2025 ratemaking, apprentice pilot salaries will no longer be included as a 2022 operating expense, because the apprentice pilot wage benchmark will have already been factored into the ratemaking Steps 3 and 4 in calculation of the 2022 rates. Starting in 2025, the applicant salaries' operating expenses for 2022 will consist of only applicant trainees (those who are not yet apprentice pilots).
Having identified the recognized 2019 operating expenses in Step 1, the next step is to estimate the current year's operating expenses by adjusting those expenses for inflation over the 3-year period. We calculate inflation using the Bureau of Labor Statistics (BLS) data from the Consumer Price Index (CPI) for the Midwest Region of the United States for the 2020 and 2021 inflation rates.
In accordance with the text in § 404.103, we estimate the number of fully registered pilots in each district. With rounding, the maximum number of pilots increases to 18 (17.25 rounding up to 18), with the additional pilot allocated to the maximum for the undesignated area of District One, for a maximum of 8 pilots in the undesignated area and a maximum of 10 pilots in the designated area. We determine the number of fully registered pilots based on data provided by the SLSPA. Using these numbers, we estimate that there will be 18 registered pilots in 2022 in District One, meeting the increased maximum proposed in the NPRM. We determine the number of apprentice pilots based on input from the district on anticipated retirements and staffing needs. Using these numbers, we estimate that there will be two apprentice pilots in 2022 in District One. Based on the seasonal staffing model discussed in the 2017 ratemaking (see 82 FR 41466), and our changes to that staffing model, we assign a certain number of pilots to designated waters and a certain number to undesignated waters, as shown in table 5. These numbers are used to determine the amount of revenue needed in their respective areas.
In this step, we determine the total target pilot compensation for each area. As we are issuing an “interim” ratemaking this year, we follow the procedure outlined in paragraph (b) of § 404.104, which adjusts the existing compensation benchmark for inflation. As stated in section V.A of the preamble, we are using a two-step process to adjust target pilot compensation for inflation. First, we adjust the 2021 target compensation benchmark of $378,925 by 3.1 percent for an adjusted value of $390,672. The adjustment accounts for the difference in actual fourth quarter (Q4) 2021 ECI inflation, which is 4.8 percent, and the 2021 PCE estimate of 1.7 percent.
Next, we certify that the number of pilots estimated for 2022 is less than or equal to the number permitted under the changes to the staffing model in § 401.220(a). The changes to the staffing model suggest that the number of pilots needed is 18 pilots for District One, which is less than or equal to 18, the number of registered pilots provided by
Next, we calculate the working capital fund revenues needed for each area. First, we add the figures for projected operating expenses, total pilot compensation, and total apprentice pilot wage benchmark for each area. Next, we find the preceding year's average annual rate of return for new issues of high-grade corporate securities. Using Moody's data, the number is 2.4767 percent.
In this step, we add all the expenses accrued to derive the total revenue needed for each area. These expenses include the projected operating expenses (from Step 2), the total pilot compensation (from Step 4), total apprentice pilot wage benchmark (from Step 4), and the working capital fund contribution (from Step 5). We show these calculations in table 9.
Having determined the revenue needed for each area in the previous six steps, to develop an hourly rate we divide that number by the expected number of hours of traffic. Step 7 is a two-part process. In the first part, we calculate the 10-year average of traffic in District One, using the total time on task or pilot bridge hours. To calculate the time on task for each district, the Coast Guard uses billing data from the Great Lakes Pilotage Management System (GLPMS) and SeaPro.
Next, we derive the initial hourly rate by dividing the revenue needed by the average number of hours for each area. This produces an initial rate, which is necessary to produce the revenue needed for each area, assuming the amount of traffic is as expected. We present the calculations for each area in table 11.
In this step, we calculate the average weighting factor for each designated and undesignated area. We collect the weighting factors, set forth in 46 CFR 401.400, for each vessel trip. Using this database, we calculate the average weighting factor for each area using the data from each vessel transit from 2014 onward, as shown in tables 12 and 13.
In this step, we revise the base rates so that, once the impact of the weighting factors is considered, the total cost of pilotage will be equal to the revenue needed. To do this, we divide the initial base rates calculated in Step 7 by the average weighting factors calculated in Step 8, as shown in table 14.
In this step, the Director reviews the rates set forth by the staffing model and ensures that they meet the goal of ensuring safe, efficient, and reliable pilotage. To establish this, the Director considers whether the rates incorporate appropriate compensation for pilots to handle heavy traffic periods, and whether there is a sufficient number of pilots to handle those heavy traffic periods. The Director also considers whether the rates will cover operating expenses and infrastructure costs,
Step 1 in our ratemaking methodology requires that the Coast Guard review and recognize the previous year's operating expenses (§ 404.101). To do so, we begin by reviewing the independent accountant's financial reports for each association's 2019 expenses and revenues, which are available in the docket for this rulemaking. For accounting purposes, the financial reports divide expenses into designated (60 percent) and undesignated areas (40 percent). For costs accrued by the pilot associations generally, such as employee benefits, for example, the cost is divided between the designated and undesignated areas on a
Adjustments made by the auditors are explained in the auditors' reports, which are available in the docket for this rulemaking.
In the 2019 expenses used as the basis for this rulemaking, districts used the term “applicant” to describe applicant trainees and persons who are called apprentices (applicant pilots) under the new definition in this rulemaking. Therefore, when describing past expenses, we use the term “applicant” to match what was reported from 2019, which includes both applicant trainees and apprentice pilots. We use “apprentice” to distinguish the apprentice pilot wage benchmark and describe the impacts of the ratemaking going forward.
There are two Director's adjustments for District Two. The first deduction is $173,818, the amount of surcharge collected in 2019 to recoup expenses of one applicant pilot, which is greater than the allowable surcharge of $150,000 per applicant pilot. The second deduction of $287,836 reduces the allowable expenses for applicant pilot salaries to 36 percent of target pilot compensation. District Two reported $417,395 in expenses for the salary of a single applicant pilot, more than the salary of a fully registered pilot. Using the 36-percent target, the allowable applicant salary would have been $129,559, meaning the district paid an excess of $287,836 in applicant salaries ($417,395−$129,559 = $287,836). We continue to include applicant salaries as an allowable expense in the 2022 ratemaking, as it is based on 2019 operating expenses, when salaries for both apprentices and applicant trainees were still an allowable expense. The apprentice salaries paid in the years 2019, 2020, and 2021 have not been reimbursed in the ratemaking as of publication of this rule. Applicant salaries (including applicant trainees and apprentice pilots) will continue to be an allowable operating expense through the 2024 ratemaking, which will use operating expenses from 2021, when the salaries for apprentice pilots were still authorized as operating expenses. Starting in the 2025 ratemaking, apprentice pilot salaries will no longer be included as a 2022 operating expense, because apprentice pilot wages will have already been factored into the ratemaking Steps 3 and 4 in calculation of the 2022 rates. Starting in 2025, the applicant salaries' operating expenses for 2022 will consist of only applicant trainees (those who are not yet apprentice pilots).
As discussed above, in a public comment on the NPRM for this rulemaking, the LPA commented that the expenses listed in the NPRM for license insurance and applicant health insurance were incorrect. An independent accounting firm reviewed the expenses LPA claimed as the correct figures and determined that the license insurance expense figure of $1,825 originally proposed in the NPRM was correct, and that the amount the LPA claimed was missing was accounted for in another line item. The independent accountant further determined that the applicant health insurance expense of $200 originally proposed was incorrect. In this final rule, Coast Guard corrects the applicant health insurance to a total of $31,764, with $12,706 allocated to the undesignated area and $19,058 allocated to the designated area.
Having identified the recognized 2019 operating expenses in Step 1, the next step is to estimate the current year's operating expenses by adjusting those expenses for inflation over the 3-year period.
We calculate inflation using the BLS data from the CPI for the Midwest Region of the United States for the 2020 and 2021 inflation rates.
In accordance with the text in § 404.103, we estimate the number of registered pilots in each district. We determine the number of registered pilots based on data provided by the LPA. With rounding, the maximum number of pilots for District Two increases to 16 pilots (15.41 rounding up to 16), with the additional pilot allocated to the maximum for the undesignated area of District Two, resulting in a maximum of 7 pilots for the designated area and a maximum of 9 pilots for the undesignated area. In the NPRM, the Coast Guard estimated that District Two would fill the new maximum of 16 registered pilots, but has since been made aware that a temporary pilot performed substantially fewer trips than the average number of assignments per pilot projected in the staffing model, and that an apprentice pilot previously projected to join as a registered pilot will not do so, as noted in section IV. F. of the discussion of public comments and changes. Therefore, in this final rule, we estimate that there will be 14 registered pilots in 2022 in District Two. We determine the number of apprentice pilots based on input from the district on anticipated retirements and staffing needs. Using these numbers, we estimate that there will be two apprentice pilots in 2022 in District Two. Furthermore, based on the seasonal staffing model discussed in the 2017 ratemaking (see 82 FR 41466), and our changes to that staffing model, we assign a certain number of pilots to designated waters and a certain number to undesignated waters, as shown in table 18. These numbers are used to determine the amount of revenue needed in their respective areas.
In this step, we determine the total pilot compensation for each area. As we are issuing an “interim” ratemaking this year, we follow the procedure outlined in paragraph (b) of § 404.104, which adjusts the existing compensation benchmark by inflation. As stated in section V.A of the preamble, we using a two-step process to adjust target pilot compensation for inflation. First, we adjust the 2021 target compensation benchmark of $378,925 by multiplying by 3.1 percent for an adjusted value of $390,672. The adjustment accounts for the difference in actual Q4 2021 ECI inflation, 4.8 percent, and the 2020 PCE estimate of 1.7 percent.
Next, we certify that the number of pilots estimated for 2022 is less than or equal to the number permitted under the changes to the staffing model in § 401.220(a). The changes to the staffing model suggest that the number of pilots needed is 14 pilots for District Two, which is less than or equal to 16, the maximum number of registered pilots provided by staffing model.
Thus, in accordance with § 404.104(c), we use the revised target
Next, we calculate the working capital fund revenues needed for each area. First, we add the figures for projected operating expenses, total pilot compensation, and total apprentice pilot wage benchmarks for each area. Next, we find the preceding year's average annual rate of return for new issues of high-grade corporate securities. Using Moody's data, the number is 2.4767 percent.
In this step, we add all the expenses accrued to derive the total revenue needed for each area. These expenses include the projected operating expenses (from Step 2), the total pilot compensation (from Step 4), total apprentice pilot wage benchmarks, and the working capital fund contribution (from Step 5). We show these calculations in table 21.
Having determined the revenue needed for each area in the previous six steps, to develop an hourly rate we divide that number by the expected number of hours of traffic. Step 7 is a two-part process. In the first part, we calculate the 10-year average of traffic in District Two, using the total time on task or pilot bridge hours. To calculate the time on task for each district, the Coast Guard uses billing data from the GLPMS and SeaPro. We pull the data from the system, filtering by district, year, job status (we only include closed jobs), and flagging code (we only include U.S. jobs). After downloading the data, we remove any overland
Next, we derive the initial hourly rate by dividing the revenue needed by the average number of hours for each area. This produces an initial rate, which is necessary to produce the revenue needed for each area, assuming the amount of traffic is as expected. The calculations for each area are set forth in table 23.
In this step, we calculate the average weighting factor for each designated and undesignated area. We collect the weighting factors, set forth in 46 CFR 401.400, for each vessel trip. Using this database, we calculate the average weighting factor for each area using the data from each vessel transit from 2014 onward, as shown in tables 24 and 25.
In this step, we revise the base rates so that, once the impact of the weighting factors is considered, the total cost of pilotage will be equal to the revenue needed. To do this, we divide the initial base rates calculated in Step 7 by the average weighting factors calculated in Step 8, as shown in table 26.
In this step, the Director reviews the rates set forth by the staffing model and ensures that they meet the goal of ensuring safe, efficient, and reliable pilotage. To establish this, the Director considers whether the rates incorporate appropriate compensation for pilots to handle heavy traffic periods, and whether there is a sufficient number of pilots to handle those heavy traffic periods. The Director also considers whether the rates will cover operating expenses and infrastructure costs, and takes average traffic and weighting factors into consideration. Based on this information, the Director is not making any alterations to the rates in this step. The 2022 rate for the designated area of District Two is higher than the 2021 final rate, despite the increased traffic shown in Step 7, because of increased inflation. We modify § 401.405(a)(3) and (4) to reflect the final rates shown in table 27.
Step 1 in our ratemaking methodology requires that the Coast Guard review and recognize the previous year's operating expenses (§ 404.101). To do so, we begin by reviewing the independent accountant's financial reports for each association's 2019 expenses and revenues, which are available in the docket for this rulemaking. For accounting purposes, the financial reports divide expenses into a designated area (21 percent) and two undesignated areas (52 and 27 percent). For costs accrued by the pilot associations generally, such as employee benefits, for example, the cost is divided between the designated and undesignated areas on a
Adjustments made by the auditors are explained in the auditors' reports, which are available in the docket for this rulemaking.
In the 2019 expenses used as the basis for this rulemaking, districts used the term “applicant” to describe applicant trainees and persons who are called apprentices (applicant pilots) under the new definition in this rulemaking. Therefore, when describing past expenses, we use the term “applicant” to match what was reported from 2019, which includes both applicant trainees and apprentice pilots. We use “apprentice” to distinguish the apprentice pilot wage benchmark and describe the impacts of the ratemaking going forward.
There are two Director's adjustments for District Three. The first deduction is $746,802, the amount of surcharge collected in 2019 to recoup expenses of five applicant pilots. In the NPRM, the Coast Guard proposed a second deduction of $1,921 to reduce the allowable expenses for applicant pilots to 36 percent of target pilot compensation. In this final rule, Coast Guard removes this deduction because we confirmed that the fifth apprentice reported was approved by the Director, meaning that the average per-apprentice compensation was below the 36-percent benchmark. District Three reported $520,158 in expenses for the salary of five applicant pilots. Using the 36-percent target, the allowable applicant salary would have been $129,559 per applicant, for a total of $647,797 for five applicant pilots, meaning the district paid an average of $104,032 per applicant, which is below the $129,559 target. Applicant salaries (including applicant trainees and apprentice pilots) will continue to be an allowable operating expense through the 2024 ratemaking, which will use operating expenses from 2021, when the wages for apprentice pilots were still authorized as operating expenses. Starting in the 2025 ratemaking, apprentice pilot salaries will no longer be included as a 2022 operating expense, because apprentice pilot wage benchmark will have already been factored into the ratemaking Steps 3 and 4 in calculation of the 2022 rates. Starting in 2025, the applicant salaries operating expenses for 2022 will consist of only applicant trainees (those who are not apprentice pilots).
Having identified the recognized 2019 operating expenses in Step 1, the next step is to estimate the current year's operating expenses by adjusting those expenses for inflation over the 3-year period.
We calculate inflation using the BLS data from the CPI for the Midwest Region of the United States for the 2020 and 2021 inflation rates.
In accordance with the text in § 404.104(c), we estimate the number of registered pilots in each district. Rounding in the staffing model does not increase the maximum number of pilots for District Three because the total pilots needed, 21.55, already rounds up to 22. We determine the number of registered pilots based on data provided by the WGLPA. In the NPRM, we estimated that there would be 22 registered pilots in 2022 in District Three. However, during the GLPAC meeting on September 1, 2021, WGLPA reported that they would have three retirements before the 2022 season. Therefore, we now estimate that there will be 19 registered pilots in 2022 in District Three, with 4 pilots assigned to designated areas and 15 pilots assigned to undesignated areas. We determine the number of apprentice pilots based on input from the district on anticipated retirements and staffing needs. Using these numbers, we estimate that there will be five apprentice pilots in 2022 in District Three. Furthermore, based on the seasonal staffing model discussed in the 2017 ratemaking (see 82 FR 41466), and our changes to that staffing model, we assign a certain number of pilots to designated waters and a certain number to undesignated waters, as shown in table 30. These numbers are used to determine the amount of revenue needed in their respective areas.
In this step, we determine the total pilot compensation for each area. As we are issuing an “interim” ratemaking this year, we follow the procedure outlined in paragraph (b) of § 404.104, which adjusts the existing compensation benchmark by inflation. First, we adjust the 2021 target compensation benchmark of $378,925 by 3.1 percent for an adjusted value of $390,672. The adjustment accounts for the difference in actual Q4 2021 ECI inflation, 4.8 percent, and the 2020 PCE estimate of 1.7 percent.
Next, we certify that the number of pilots estimated for 2022 is less than or equal to the number permitted under the changes to the staffing model in § 401.220(a). The changes to the staffing model suggest that the number of pilots needed is 19 pilots for District Three, which is less than or equal to 22, the number of registered pilots provided by the pilot associations.
Thus, in accordance with § 404.104(c), we use the revised target individual compensation level to derive the total pilot compensation by multiplying the individual target compensation by the estimated number of registered pilots for District Three, as shown in table 31.
Next, we calculate the working capital fund revenues needed for each area. First, we add the figures for projected operating expenses, total pilot compensation, and total apprentice pilot wage benchmarks for each area. Next, we find the preceding year's average annual rate of return for new issues of high-grade corporate securities. Using Moody's data, the number is 2.4767 percent.
In this step, we add all the expenses accrued to derive the total revenue needed for each area. These expenses include the projected operating expenses (from Step 2), the total pilot compensation (from Step 4), and the working capital fund contribution (from Step 5). The calculations are shown in table 33.
Having determined the revenue needed for each area in the previous six steps, to develop an hourly rate we divide that number by the expected number of hours of traffic. Step 7 is a two-part process. In the first part, we calculate the 10-year average of traffic in District Three, using the total time on task or pilot bridge hours. To calculate the time on task for each district, the Coast Guard uses billing data from the GLPMS and SeaPro. We pull the data from the system, filtering by district, year, job status (we only include closed jobs), and flagging code (we only include U.S. jobs). After downloading the data, we remove any overland transfers from the dataset, if necessary, and sum the total bridge hours, by area. We then subtract any non-billable delay hours from the total. Because we calculate separate figures for designated and undesignated waters, there are two parts for each calculation. We show these values in table 34.
Next, we derive the initial hourly rate by dividing the revenue needed by the average number of hours for each area. This produces an initial rate, which is necessary to produce the revenue needed for each area, assuming the amount of traffic is as expected. The calculations for each area are set forth in table 35.
In this step, we calculate the average weighting factor for each designated and undesignated area. We collect the weighting factors, set forth in 46 CFR 401.400, for each vessel trip. Using this database, we calculate the average weighting factor for each area using the data from each vessel transit from 2014 onward, as shown in tables 36 and 37.
In this step, we revise the base rates so that once the impact of the weighting factors is considered, the total cost of pilotage will be equal to the revenue needed. To do this, we divide the initial base rates calculated in Step 7 by the average weighting factors calculated in Step 8, as shown in table 38.
In this step, the Director reviews the rates set forth by the staffing model and ensures that they meet the goal of ensuring safe, efficient, and reliable pilotage. To establish this, the Director considers whether the rates incorporate appropriate compensation for pilots to handle heavy traffic periods, and whether there is a sufficient number of pilots to handle those heavy traffic periods. The Director also considers whether the rates will cover operating expenses and infrastructure costs, and takes average traffic and weighting factors into consideration. Based on this information, the Director is not making any alterations to the rates in this step. We will modify § 401.405(a)(5) and (6) to reflect the final rates shown in table 39.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. A summary of our analyses based on these statutes or Executive orders follows.
Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. A regulatory analysis follows.
The purpose of this rule is to establish new base pilotage rates, as 46 U.S.C. 9303(f) requires that rates be established or reviewed and adjusted each year. The statute also requires that base rates be established by a full ratemaking at least once every 5 years, and, in years when base rates are not established, they must be reviewed and, if necessary, adjusted. The last full ratemaking was concluded in June of 2018.
Table 40 summarizes changes with no cost impacts or where the cost impacts are captured in the rate change. Table 41 summarizes the affected population, costs, and benefits of the rate change.
The Coast Guard is required to review and adjust pilotage rates on the Great Lakes annually. See section III of this preamble for detailed discussions of the legal basis and purpose for this rulemaking. Based on our annual review for this rulemaking, we are adjusting the pilotage rates for the 2022 shipping season to generate sufficient revenues for each district to reimburse its necessary and reasonable operating expenses, fairly compensate trained and rested pilots, and provide an appropriate working capital fund to use for improvements. The result will be an increase in rates for all areas in District One and District Two, and in the designated area of District Three. The rate for the undesignated area of District Three will decrease. These changes will lead to a net increase in the cost of service to shippers. However, because the rates will increase for some areas and decrease for others, the change in per unit cost to each individual shipper will be dependent on their area of operation, and if they previously paid a surcharge.
A detailed discussion of our economic impact analysis follows.
This rule affects United States Great Lakes pilots, the 3 pilot associations, and the owners and operators of 293 oceangoing vessels that transit the Great Lakes annually. We estimate that there
The Coast Guard used billing information from the years 2018 through 2020 from the GLPMS to estimate the average annual number of vessels affected by the rate adjustment. The GLPMS tracks data related to managing and coordinating the dispatch of pilots on the Great Lakes, and billing in accordance with the services. As described in Step 7 of the ratemaking methodology, we use a 10-year average to estimate the traffic. We used 3 years of the most recent billing data to estimate the affected population. When we reviewed 10 years of the most recent billing data, we found the data included vessels that have not used pilotage services in recent years. We believe using 3 years of billing data is a better representation of the vessel population that is currently using pilotage services and will be impacted by this rulemaking. We found that 514 unique vessels used pilotage services during the years 2018 through 2020. That is, these vessels had a pilot dispatched to the vessel, and billing information was recorded in the GLPMS or SeaPro.
Numerous factors affect vessel traffic, which varies from year to year. Therefore, rather than using the total number of vessels over the time period, we took an average of the unique vessels using pilotage services from the years 2018 through 2020 as the best representation of vessels estimated to be affected by the rates in this rulemaking. From 2018 through 2020, an average of 293 vessels used pilotage services annually.
The rate changes resulting from this adjustment to the rates will result in a net increase in the cost of service to shippers. However, the change in per unit cost to each individual shipper will be dependent on their area of operation.
The Coast Guard estimates the effect of the rate changes on shippers by comparing the total projected revenues needed to cover costs in 2021 with the total projected revenues to cover costs in 2022, including any temporary surcharges we have authorized.
The impacts of the rate changes on shippers are estimated from the district pilotage projected revenues (shown in tables 9, 21, and 33 of this preamble). The Coast Guard estimates that for the 2022 shipping season, the projected revenue needed for all three districts is $32,486,994.
To estimate the change in cost to shippers from this rule, the Coast Guard compared the 2022 total projected revenues to the 2021 projected revenues. Because we review and prescribe rates for the Great Lakes Pilotage annually, the effects are estimated as a single-year cost rather than annualized over a 10-year period. In the 2021 rulemaking, we estimated the total projected revenue needed for 2021 as $30,332,652.
The resulting difference between the projected revenue in 2021 and the projected revenue in 2022 is the annual change in payments from shippers to pilots as a result of the rate change imposed by this rule. The effect of the rate change to shippers varies by area and district. After taking into account the change in pilotage rates, the rate changes will lead to affected shippers operating in District One experiencing an increase in payments of $1,170,754 over the previous year. District Two and District Three will experience an increase in payments of $280,177 and $703,412, respectively, when compared with 2021. The overall adjustment in payments will be an increase in payments by shippers of $2,154,343 across all three districts (a 7-percent increase when compared with 2021). Again, because the Coast Guard reviews and sets rates for Great Lakes pilotage annually, we estimate the impacts as single-year costs rather than annualizing them over a 10-year period.
Table 43 shows the difference in revenue by revenue-component from 2021 to 2022, and presents each revenue-component as a percentage of the total revenue needed. In both 2021 and 2022, the largest revenue-component was pilotage compensation (67 percent of total revenue needed in 2021, and 63 percent of total revenue needed in 2022), followed by operating expenses (29 percent of total revenue needed in 2021, and 31 percent of total revenue needed in 2022).
As stated above, we estimate that there will be a total increase in revenue needed by the pilot associations of $2,154,343. This represents a decrease in revenue needed for target pilot compensation of ($99,384), the now-codified revenue needed for total apprentice pilot wage benchmark of $1,293,622, an increase in the revenue needed for adjusted operating expenses of $1,168,808, and a decrease in the revenue needed for the working capital fund of ($208,703).
The change in revenue needed for pilot compensation, ($99,384), is due to four factors: (1) The changes to adjust 2021 pilotage compensation to account for the difference between actual ECI inflation (5.1 percent)
The target compensation is $399,266 per pilot in 2022, compared to $378,925 in 2021. The changes to modify the 2021 pilot compensation to account for the difference between predicted and actual inflation will increase the 2021 target compensation value by 3.1 percent. As shown in table 44, this inflation adjustment increases total compensation by $11,747 per pilot, and the total revenue needed by $599,080 when accounting for all 51 pilots.
Adjusting rounding in the staffing model to always round up, rather than round to the nearest integer, increases the maximum number of pilots in District One and District Two. The potential impact of this change is equivalent to an increase in revenue needed for two fully registered pilots because the districts would have the ability to hire two more pilots than they would have without rounding. The cost of $775,039 is based on target compensation for 2022. However, only District One will utilize the increased maximum number of pilots in the 2022 season, while District Two will have fewer than the maximum number of pilots in the 2022 season. For this reason, the potential impact of rounding in the staffing model is not fully realized in the 2022 season. Further, the increase in revenue needed from rounding is offset by the net decrease in pilots needed, such that the cost is not represented in the rate for this year. For that reason, the Coast Guard breaks out the potential and realized costs separately and does not show the percentage in relation to the increase in total revenue needed, as shown in table 45. To avoid double counting, the Coast Guard excludes the change in revenue resulting from adjustments for inflation to account for the difference between actual and predicted inflation.
As noted earlier, the Coast Guard revised the total number of pilots needed from 56 pilots in the NPRM to 51 pilots in this final rule because of the attrition of one apprentice pilot, the removal of one temporary pilot in District Two, and three retirements in District Three going into the 2022 season. This change is discussed in detail in section IV. F. of the discussion of comments and changes. The result is a net decrease of three pilots needed compared to the 2021 season, which projected 54 pilots needed. The difference reflects an increase of one pilot in District One, a decrease of one pilot in District Two, and a decrease of three pilots in District Three (1−1−3 =−3). Table 46 shows the decrease of $1,162,558 in revenue needed solely for pilot compensation. As above, to avoid double counting, this value excludes the change in revenue resulting from the change to adjust 2021 pilotage compensation to account for the difference between actual and predicted inflation.
Another increase, $438,311, is the result of increasing compensation for the 51 pilots to account for future inflation of 2.2 percent in 2022. This will increase total compensation by $8,594 per pilot, as shown in table 47.
Finally, the largest part of the increase in revenue needed is to account for the apprentice pilot wage benchmark, now incorporated into the rate. First, in Step 3, we estimate the need for nine apprentice pilots for the 2022 shipping season. Based on the 2022 target pilot compensation of $399,266, the apprentice pilot wage benchmark will be $143,736 ($399,266 × 0.36 = $143,736). Setting the wage benchmark in this manner, rather than through a surcharge, better allows apprentice pilot wage benchmark to match fluctuations in the pilot compensation, which follows changes in traffic and better accounts for changes in inflation than the surcharge. Additionally, unlike a surcharge, this method will not need to be “turned off” once the target amount of surcharge is collected, which makes rates throughout the season more predictable for shippers. The total cost of the wage benchmark for the 9 apprentice pilots will be $1,293,622, as shown in table 48.
Table 49 presents the percentage change in revenue by area and revenue-component, excluding surcharges, as they are applied at the district level.
This rule allows the Coast Guard to meet the requirements in 46 U.S.C. 9303 to review the rates for pilotage services on the Great Lakes. The rate changes promote safe, efficient, and reliable pilotage service on the Great Lakes by (1) ensuring that rates cover an association's operating expenses, (2) providing fair pilot compensation, adequate training, and sufficient rest periods for pilots, and (3) ensuring pilot associations produce enough revenue to fund future improvements. The rate changes also help recruit and retain pilots, which ensure a sufficient number of pilots to meet peak shipping demand, helping to reduce delays caused by pilot shortages.
Under the Regulatory Flexibility Act, 5 U.S.C. 601–612, we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
For the rule, the Coast Guard reviewed recent company size and ownership data for the vessels identified in the GLPMS, and we reviewed business revenue and size data provided by publicly available sources such as Manta
Of the 14 U.S. entities, 7 exceed the SBA's small business standards for small entities. To estimate the potential impact on the seven small entities, the Coast Guard used their 2020 invoice data to estimate their pilotage costs in 2022. Of the seven entities, from 2018 to 2020, only three used pilotage services in 2020. We increased their 2020 costs to account for the changes in pilotage rates resulting from this rule and the Great Lakes Pilotage Rates—2021 Annual Review and Revisions to Methodology final rule (86 FR 14184). We estimated the change in cost to these entities resulting from this rule by subtracting their estimated 2021 pilotage costs from their estimated 2022 pilotage costs and found the average costs to small firms will be approximately $9,375, with a range of $354 to $41,331.
In addition to the owners and operators discussed above, three U.S. entities that receive revenue from pilotage services will be affected by this rule. These are the three pilot associations that provide and manage pilotage services within the Great Lakes districts. Two of the associations operate as partnerships, and one operates as a corporation. These associations are designated with the same NAICS code and small-entity size standards described above, but have fewer than 500 employees. Combined, they have approximately 65 employees in total and, therefore, are designated as small entities. The Coast Guard expects no adverse effect on these entities from this rule, because the three pilot associations will receive enough revenue to balance the projected expenses associated with the projected number of bridge hours (time on task) and pilots.
Finally, the Coast Guard did not find any small not-for-profit organizations that are independently owned and operated and are not dominant in their fields that will be impacted by this rule. We also did not find any small governmental jurisdictions with populations of fewer than 50,000 people that will be impacted by this rule. Based on this analysis, we conclude this rulemaking will not affect a substantial number of small entities, nor have a significant economic impact on any of the affected entities.
Based on our analysis, this rule will have a less than 1 percent annual impact on small entities; therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104–121, we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501–3520.
A rule has implications for federalism under Executive Order 13132 (Federalism) if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under Executive Order 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements as described in Executive Order 13132. Our analysis follows.
Congress directed the Coast Guard to establish “rates and charges for pilotage services”. See 46 U.S.C. 9303(f). This regulation is issued pursuant to that statute and is preemptive of State law as specified in 46 U.S.C. 9306. Under 46 U.S.C. 9306, a “State or political subdivision of a State may not regulate or impose any requirement on pilotage on the Great Lakes.” As a result, States or local governments are expressly prohibited from regulating within this category. Therefore, this rule is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with implications and preemptive effect, Executive Order 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. If you believe this rule has implications for federalism under Executive Order 13132, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531–1538, requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, 46 U.S.C. Chapter 93 addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100 million (adjusted for inflation) or more in any one year. Although this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights).
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, (Civil Justice Reform), to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks). This rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under DHS Management Directive 023–01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A final Record of Environmental Consideration supporting this determination is available in the docket for this rulemaking. For instructions on locating the docket, see the
This rule meets the criteria for categorical exclusion (CATEX) under paragraphs A3 and L54 of Appendix A, Table 1 of DHS Instruction Manual 023–001–01, Rev. 1.
This rule involves setting or adjusting the pilotage rates for the upcoming shipping season to account for changes in district operating expenses, changes in the number of pilots, and anticipated inflation. In addition, the Coast Guard is (1) changing the way we determine the number or pilots that are needed for the upcoming season in the staffing model, and (2) including in our methodology a calculation for a wage benchmark for apprentice pilots. All of these changes are consistent with the Coast Guard's maritime safety missions.
Administrative practice and procedure, Great Lakes; Navigation (water), Penalties, Reporting and recordkeeping requirements, Seamen.
Great Lakes, Navigation (water), Seamen.
For the reasons discussed in the preamble, the Coast Guard amends 46 CFR parts 401 and 404 as follows:
46 U.S.C. 2103, 2104(a), 6101, 7701, 8105, 9303, 9304; DHS Delegation 00170.1, Revision No. 01.2, paragraphs (II)(92)(a), (d), (e), (f).
(a) * * *
(18)
(19)
(b) [Reserved]
(a) * * *
(3) The number of pilots needed in each district is calculated by totaling the area results by district and rounding them up to a whole integer. * * *
(a) * * *
(1) The St. Lawrence River is $834;
(2) Lake Ontario is $568;
(3) Lake Erie is $610;
(4) The navigable waters from Southeast Shoal to Port Huron, MI is $536;
(5) Lakes Huron, Michigan, and Superior is $342; and
(6) The St. Marys River is $662.
46 U.S.C. 2103, 2104(a), 9303, 9304; DHS Delegation 00170.1, Revision No. 01.2, paragraphs (II)(92)(a), (f).
(b) * * *
(7)
The revisions and additions read as follows:
(b) The Director projects, based on the number of persons applying under 46
The revision and additions read as follows:
(d) The Director determines the individual Apprentice Pilot wage benchmark at the rate of 36 percent of the individual target pilot compensation, as calculated according to paragraphs (a) or (b) of this section.
(e) The Director determines each pilot association's total Apprentice Pilot wage benchmark by multiplying the Apprentice Pilot compensation computed in paragraph (d) of this section by the number of Apprentice Pilots and Apprentice Pilots with Limited Registrations projected under § 404.103(b).
Occupational Safety and Health Administration (OSHA), Labor.
Proposed rule; request for comments.
OSHA is proposing to amend its occupational injury and illness recordkeeping regulation to require certain employers to electronically submit injury and illness information to OSHA that employers are already required to keep under the recordkeeping regulation. Specifically, OSHA proposes to amend its regulation to require establishments with 100 or more employees in certain designated industries to electronically submit information from their OSHA Forms 300, 301, and 300A to OSHA once a year. Establishments with 20 or more employees in certain industries would continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA once a year. OSHA also proposes to update the classification system used to determine the list of industries covered by the electronic submission requirement. In addition, the proposed rule would remove the current requirement for establishments with 250 or more employees, not in a designated industry, to electronically submit information from their Form 300A to OSHA on an annual basis. OSHA intends to post the data from the proposed annual electronic submission requirement on a public website after identifying and removing information that reasonably identifies individuals directly, such as individuals' names and contact information. Finally, OSHA is proposing to require establishments to include their company name when making electronic submissions to OSHA.
Comments must be submitted by May 31, 2022.
Electronic copies of this
Authority and Signature
OSHA's regulation at 29 CFR part 1904 requires employers with more than 10 employees in most industries to keep records of occupational injuries and illnesses at their establishments. Employers covered by the regulation must record each recordable employee injury and illness on an OSHA Form 300, which is the “Log of Work-Related Injuries and Illnesses,” or equivalent. The OSHA Form 300 includes information about the employee's name, job title, date of the injury or illness, where the injury or illness occurred, description of the injury or illness (
Section 1904.41 of the current recordkeeping regulation also requires certain employers to electronically submit injury and illness data to OSHA. Section 1904.41(a)(1) requires establishments with 250 or more employees in industries that are required to routinely keep OSHA injury and illness records to electronically submit information from the Form 300A summary to OSHA once a year. Section 1904.41(a)(2) requires establishments with 20–249 employees in certain designated industries to electronically submit information from their Form 300A summary to OSHA once a year. Also, § 1904.41(a)(3) provides that, upon notification, employers must electronically submit requested information from their part 1904 records to OSHA. Lastly, § 1904.41(a)(4) requires each establishment that must electronically submit injury and illness information to OSHA to also provide their Employer Identification Number (EIN) in their submittal.
Under this proposed rule, establishments with 20 or more employees in certain designated industries (listed in appendix A to subpart E) would continue to electronically submit information from their Form 300A annual summary to OSHA once a year. However, the proposed rule would eliminate the requirement for all establishments with 250 or more employees in industries that are required to routinely keep OSHA injury and illness records to electronically submit information from the Form 300A to OSHA. Instead, establishments with 100 or more employees in certain designated industries (listed in appendix B to subpart E) would be required to electronically submit information from their OSHA Forms 300, 301, and 300A to OSHA once a year. OSHA also proposes to update the industry classification system used for the proposed list of designated industries in appendix A and B to subpart E. In addition, OSHA is proposing to require establishments to include their company name when making electronic submissions to OSHA.
The proposed requirement for establishments with 20 or more employees in certain designated industries to electronically submit information from their Form 300A to OSHA once a year is essentially the same as the current regulation. For establishments with 100 or more employees in certain designated industries, the proposed requirement to electronically submit information from their Forms 300 and 301 to OSHA on an annual basis represents a change from the current regulation. The proposed requirement would provide systematic access for OSHA to the establishment-specific, case-specific injury and illness information that these establishments are already required to collect.
Additionally, OSHA intends to post the collected establishment-specific, case-specific injury and illness information online. As discussed in more detail below, the agency will seek to minimize the possibility that worker information, such as name and contact information, will be released, through multiple efforts, including limiting the worker information collected, designing the collection system to provide extra protections for some of the information that employers would be required to submit under the proposal, withholding certain fields from public disclosure, and using automated software to identify and remove information that reasonably identifies individuals directly. OSHA does not intend to include information that reasonably identifies individuals directly, such as employee name, contact information, and name of physician or health care professional, in the published information. The expanded public access to establishment-specific, case-specific injury and illness data would allow employers, employees, potential employees, employee representatives, customers, potential customers, researchers, and the general public to make informed decisions about the workplace safety and health at a given establishment, and this accessibility will ultimately result in the reduction of occupational injuries and illnesses.
OSHA estimates that this proposed rule would have economic costs of $4.3 million per year, including $3.9 million per year to the private sector, with costs of $81 per year for affected establishments with 100 or more employees in designated industries. The agency believes that the annual benefits, while unquantified, would significantly exceed the annual costs.
OSHA seeks comment on this proposal.
OSHA's regulations on recording and reporting occupational injuries and illnesses (29 CFR part 1904) were first issued in 1971 (36 FR 12612 (July 2, 1971)). These regulations require the recording of work-related injuries and illnesses that involve death, loss of consciousness, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or diagnosis of a significant injury or illness by a physician or other licensed
On July 29, 1977, OSHA amended these regulations to partially exempt businesses having ten or fewer employees during the previous calendar year from the requirement to record occupational injuries and illnesses (42 FR 38568). Then, on December 28, 1982, OSHA amended the regulations again to partially exempt establishments in certain lower-hazard industries from the requirement to record occupational injuries and illnesses (47 FR 57699).
On January 19, 2001, OSHA issued a final rule amending its requirements for the recording and reporting of occupational injuries and illnesses (29 CFR parts 1904 and 1952), along with the forms employers use to record those injuries and illnesses (66 FR 5916). The final rule also updated the list of industries that are partially exempt from recording occupational injuries and illnesses.
On September 18, 2014, OSHA again amended the regulations to require employers to report work-related fatalities and severe injuries—in-patient hospitalizations, amputations, and losses of an eye—to OSHA and to allow electronic reporting of these events (79 FR 56130). The final rule also revised the list of industries that are partially exempt from recording occupational injuries and illnesses.
On May 12, 2016, OSHA amended the regulations on recording and reporting occupational injuries and illnesses to require employers, on an annual basis, to submit electronically to OSHA injury and illness information that employers are already required to keep under part 1904 (81 FR 29624). Under the 2016 revisions, establishments with 250 or more employees that are routinely required to keep records were required to electronically submit information from their OSHA Forms 300, 300A, and 301 to OSHA or OSHA's designee once a year, and establishments with 20 to 249 employees in certain designated industries were required to electronically submit information from their OSHA annual summary (Form 300A) to OSHA or OSHA's designee once a year. In addition, that final rule required employers, upon notification, to electronically submit information from part 1904 recordkeeping forms to OSHA or OSHA's designee. These provisions became effective on January 1, 2017, with an initial submission deadline of July 1, 2017, for 2016 Form 300A data. That submission deadline was subsequently extended to December 15, 2017 (82 FR 55761). The deadline for electronic submission of information from OSHA Forms 300 and 301 was July 1, 2018. Because of a subsequent rulemaking, OSHA never received the data submissions from Forms 300 and 301 that the 2016 final rule anticipated.
On January 25, 2019, OSHA issued a final rule that amended the recordkeeping regulations to remove the requirement for establishments with 250 or more employees that are routinely required to keep records to electronically submit information from their OSHA Forms 300 and 301 to OSHA or OSHA's designee once a year. These establishments are currently required to electronically submit only information from the OSHA 300A annual summary. The final rule also added a requirement for covered employers to submit their Employer Identification Number (EIN) electronically along with their injury and illness data submission (83 FR 36494, 84 FR 380–406).
Both the 2016 and 2019 OSHA final rules that addressed the electronic submission of injury and illness data were challenged in court. In
In
Additionally, since 2020, the Department of Labor (DOL) has received
In holding that FOIA Exemption 4 was inapplicable, the courts rejected OSHA's position that electronically submitted 300A injury and illness data is covered under the confidentiality exemption in FOIA Exemption 4. The decisions noted that the 300A form is posted in the workplace for three months and that there is no expectation that the employer must keep these data confidential or private. As a result, OSHA provided the requested 300A data to the plaintiffs, and initiated a policy to post collected 300A data on its public website. The data are available at
Currently, two U.S. Department of Labor data collections request and compile information from the OSHA injury and illness records certain employers are required to keep under 29 CFR part 1904: The annual collection conducted by OSHA under 29 CFR 1904.41 (Electronic Submission of Employer Identification Number (EIN) and Injury and Illness Records), and the annual Survey of Occupational Injuries and Illnesses (SOII) conducted by BLS under 29 CFR 1904.42. This proposed rule would amend the current regulation at § 1904.41. It would not change the SOII or the authority for the SOII set forth in § 1904.42.
The primary purpose of the SOII is to provide nationally-representative annual estimates of the rates and numbers of work-related non-fatal injuries and illnesses in the United States, and on how these statistics vary by incident, industry, geography, occupation, and other characteristics. Title 44 U.S.C. 3572 prohibits BLS from releasing establishment-specific and case-specific data to the general public or to OSHA. OSHA only has access to the publicly-available aggregate information from the injury and illness records collected through the BLS SOII.
The BLS has modified their collection to allow respondents that have already provided their Form 300A data to OSHA to provide their OSHA identification number (OSHA ID) to import to BLS the data that they have submitted to the OSHA ITA in that same year. Under this data-sharing feature, if BLS can successfully match establishment information with information reported to OSHA, data reported by the respondent to the OSHA ITA are automatically imported into the BLS SOII internet Data Collection Facility (IDCF). Imported data are taken from the OSHA 300A annual summary. Additional information may need to be entered manually to complete the SOII submission. In the 2021 collection for the BLS SOII, roughly 31,000 establishments had an opportunity to use this data-sharing feature for their OSHA Form 300A data,
Authority for the SOII comes from 29 CFR 1904.42, Requests from the Bureau of Labor Statistics for data. Each year, BLS collects data from Forms 300, 301, and 300A from a scientifically-selected probability sample of about 230,000 establishments, covering nearly all private-sector industries, as well as state and local government. Employers may submit their data on paper forms or electronically. BLS releases the aggregated data in November of the year following the data year (
As discussed above, the OSHA recordkeeping regulation has required certain employers to submit injury and illness information to OSHA since 1997. Currently, § 1904.41, Electronic submission of Employer Identification Number (EIN) and injury and illness records to OSHA, requires two groups of establishments to annually submit information from the OSHA Form 300A Annual Summary: Establishments with 20–249 employees in industries included in appendix A to subpart E of part 1904, and establishments with 250 or more employees in industries that are routinely required to keep part 1904 injury and illness records. For purposes of § 1904.41, the number of employees at a given establishment is based on the number of individuals employed at the establishment at any time during the previous calendar year, including full-time, part-time, seasonal, and temporary workers. In addition, data submissions under § 1904.41 are typically limited to establishments in industries with high injury and illness rates. For example, while current § 1904.41(a)(1) covers establishments with 20–249 employees, only establishments in certain designated industries are required to electronically submit information from their Form 300A under this provision.
The primary purpose of the electronic submission requirements in § 1904.41 is to enable OSHA to focus its enforcement and compliance assistance efforts on individual workplaces with ongoing serious safety and health problems, as identified by the occupational injury and illness rates at those workplaces. An establishment's submission of information from its OSHA Form 300A Annual Summary provides summary information about injuries and illnesses at that specific establishment, but not about specific cases of injury or illness at that establishment. In contrast, the OSHA Form 300 Log of Work-Related Injuries and Illnesses and Form 301 Injury and Illness Incident Report provide information about specific cases of injury or illness.
OSHA intends to make much of the data it collects public. As discussed below, the publication of specific data elements will in part be restricted by applicable federal law, including provisions under the Freedom of Information Act (FOIA), as well as specific provisions within part 1904.
Form 300 (the Log)—All collected data fields on the 300 Log will generally be made available on OSHA's website. OSHA is proposing to collect all of the fields
OSHA's regulations require employers to provide employees, former employees, their representatives, and their authorized employee representatives with access to the 300 Log (29 CFR 1904.32(b)(2)). Specifically, when an employee, former employee, personal representative, or authorized employee representative asks an employer for copies of that employer's current or stored OSHA 300 Log(s) for an establishment the employee or former employee has worked in, the employer must give the requester a copy of the relevant OSHA 300 Log(s) by the end of the next business day (29 CFR 1904.32(b)(2)(ii)). Once the copy is accessed, OSHA's recordkeeping regulation does not place any limitations on the use or release of the information by employees and employee representatives. Moreover, as explained in OSHA's 2001 final rule amending its requirements for the recording and reporting of occupational injuries and illnesses, while agency policy is that employees and their representatives with access to records should treat the information contained therein as confidential except as necessary to further the purposes of the Act, the Secretary lacks statutory authority to enforce such a policy against employees and representatives (see 66 FR 6056–57 (citing
Form 301 (Incident Report)—All collected data fields on the right-hand side of the form (Fields 10 through 18) will generally be made available. The agency currently occasionally collects the form for enforcement case files. Section 1904.35(b)(2)(v)(B) prohibits employers from releasing the information in Fields 1 through 9 (the left-hand side of the form) to individuals other than the employee or former employee who suffered the injury or illness and his or her personal representatives. Similarly, OSHA will not publish establishment-specific data from the left side of Form 301. OSHA does not release data from Fields 1 through 9 in response to FOIA requests. The agency does not currently conduct a systematic collection of the information on the Form 301. However, the agency does review the entire Form 301 during some workplace inspections and occasionally collects the form for inclusion in the enforcement case file. Note that OSHA is proposing not to collect (and therefore could not publish) Field 1 (employee name), Field 2 (employee address), Field 6 (name of treating physician or health care provider), or Field 7 (name and address of non-workplace treating facility). As above, under § 1904.35(a)(3), employers must provide access to injury and illness records for their employees and employees' representatives, as described in § 1904.35(b)(2). Also, as above, the OSHA recordkeeping regulation does not place limitations on the use or release of the information obtained by employees and employee representatives.
The BLS SOII is an establishment-based survey used to estimate nationally-representative incidence rates and counts of workplace injuries and illnesses. It also provides detailed case and demographic data for cases that involve one or more days away from work (DAFW) and for days of job transfer and restriction (DJTR).
SOII estimates the number and frequency (incidence rates) of workplace injuries and illnesses based on recordkeeping logs kept by employers during the year. These records reflect not only the year's injury and illness experience, but also the employer's understanding of which cases are work-related under recordkeeping rules promulgated by OSHA. Although SOII uses OSHA's recordkeeping rules to facilitate convenient collection of data, it is not administered by OSHA. In addition, the scope of SOII encompasses industries not required by OSHA to routinely keep injury and illness records (
The presentation of SOII data is released in the fall and contains two data components. One, sometimes referred to as the summary, provides estimates of numbers and incidence rates of employer-reported nonfatal injuries and illnesses at the industry level for all types of cases. A second, sometimes referred to as the case and demographics data, details case circumstances and worker characteristics for the subset of the cases that involved days away from work.
In contrast, under the current data collection, OSHA annually collects information from the OSHA Form 300A Annual Summary from two groups of establishments:
1. Under § 1904.41(a)(1), from establishments with 20 or more
2. under § 1904.41(a)2), from establishments with 250 or more employees in all industries that are routinely required to keep OSHA injury and illness records.
OSHA publishes this information on its website at
As discussed in more detail below, the proposed rule would amend § 1904.41 to require establishments with 100 or more employees in certain designated industries to electronically submit injury and illness information from all three recordkeeping forms to OSHA once a year (see proposed § 1904.41(a)(2)). All of the establishments that would be subject to this proposed section are already required to annually submit information from their Form 300A, but these establishments would be newly required to also annually submit certain information from their Forms 300 and 301.
The proposed requirement for the electronic submission of establishment-specific, case-specific information from the Forms 300 and 301, and the subsequent publication of certain establishment-specific, case-specific data elements would have numerous benefits.
The main purpose of the proposed rule is to prevent worker injuries and illnesses through the collection and use of timely, establishment-specific injury and illness data. With the information obtained through this proposed rule, employers, employees, employee representatives, the government, and researchers would be better able to identify and mitigate workplace hazards and thereby prevent worker injuries and illnesses.
The proposed rule would support OSHA's statutory directive to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources” (29 U.S.C. 651(b)) “by providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem” (29 U.S.C. 651(b)(12)).
The importance of this rule in preventing worker injuries and illnesses can be understood in the context of workplace safety and health in the United States today. The number of workers injured or made ill on the job remains unacceptably high. According to the SOII, each year employees experience 3 million serious (requiring more than first aid) injuries and illnesses at work, and this number is widely recognized to be an undercount of the actual number of occupational injuries and illnesses that occur annually. OSHA currently has limited information about the injury/illness risks facing workers in specific establishments, and the proposed rule would increase the agency's ability to focus resources on those workplaces where workers are at high risk.
However, even with improved targeting, OSHA Compliance Safety and Health Officers can inspect only a small proportion of the nation's workplaces each year, and it would take many decades to inspect each covered workplace in the nation even once. As a result, to reduce worker injuries and illnesses, it is of great importance for OSHA to increase its impact on the many thousands of establishments where workers are being injured or made ill but which OSHA does not have the resources to inspect. Public access to the collected establishment-specific, case-specific information may encourage employers to abate hazards and thereby prevent injuries and illnesses, so that the employer's establishment can be seen by members of the public, including investors and job seekers, as one in which the risk to workers' safety and health is low.
A requirement for the electronic submission of establishment-specific, case-specific recordkeeping data would help OSHA encourage employers to prevent worker injuries and illnesses by greatly expanding OSHA's access to the establishment-specific, case-specific information employers are already required to record under part 1904. As described in the previous section, OSHA currently does not have systematic access to this information. OSHA has limited access to case-specific, establishment-specific injury and illness information in a particular year. Typically, OSHA only has access if the establishment was inspected.
The proposed rule's provisions requiring regular electronic submission of case-specific injury and illness data would allow OSHA to obtain a much larger data set of establishment-specific, case-specific information about injuries and illnesses in the workplace. This information would help OSHA use its enforcement and compliance assistance resources more effectively by enabling OSHA to identify the workplaces where workers are at high risk.
For example, OSHA could send hazard-specific educational materials to employers who report high rates of injuries or illnesses related to those hazards. In addition, OSHA would be able to use the information to identify emerging hazards, support an agency response, and reach out to employers whose workplaces might include those hazards. The data collection would also enable the agency to focus its Emphasis Program inspections on establishments with specific hazards, such as trench and excavation collapses (see CPL 02–00–161, October 1, 2018). OSHA would be better able to refer employers who report certain types of injuries/illnesses to OSHA's free on-site consultation program. OSHA would also be able to add specific hazards or types of injury or illness to the Site Specific Targeting (SST) program, which currently is based on establishments' overall injury/illness rates.
The new collection would provide establishment-specific, case-specific injury and illness data for analyses that are not currently possible. For example, OSHA could analyze the data collected under this system to assess changes in types and rates of particular injuries or illnesses in a particular industry over time. It would also enable OSHA to conduct rigorous evaluations of different types of programs, initiatives, and interventions in different industries and geographic areas, enabling the agency to become more effective and efficient.
In addition, publication of establishment-specific, case-specific injury and illness data would benefit the majority of employers who want to prevent injuries and illnesses among their employees, through several mechanisms. First, the information would enable interested parties to gauge the full range of injury and illness case types at the establishment. Second, employers could compare case-specific injury and illness information at their establishments to those at comparable establishments, and set workplace safety/health goals benchmarked to the establishments they consider most comparable. Third, online availability of case-specific, establishment-specific injury and illness information would allow employees to compare their own workplaces to the safest workplaces in their industries. In addition, if employees were able to preferentially choose employment at the safest
Fourth, access to these data could improve the workings of the labor market by providing more complete information to job seekers, and, as a result, encourage employers to abate hazards in order to attract more in-demand employees. Using data newly accessible under this proposed rule, potential employees could examine the case-specific information at establishments where they are interested in working, to help them make a more informed decision about a future place of employment. This could also encourage employers with more hazardous workplaces in a given industry to make improvements in workplace safety and health, because potential employees, especially the ones whose skills are most in demand, might be reluctant to work at more hazardous establishments. In addition, this would help address a problem of information asymmetry in the labor market, where the businesses with the greatest problems have the lowest incentive to self-disclose.
Disclosure of and access to case-specific injury and illness data have the potential to improve research on the distribution and determinants of workplace injuries and illnesses, and therefore to prevent workplace injuries and illnesses from occurring. Using data collected under the proposed rule, researchers might identify previously unrecognized patterns of injuries and illnesses across establishments where workers are exposed to similar hazards. Such research would be especially useful in identifying hazards that result in a small number of injuries or illnesses in each establishment but a large number overall, due to a wide distribution of those hazards in a particular area, industry, or establishment type. Case-specific data made available under this proposed rule could also allow researchers to identify patterns of injuries or illnesses that are masked by the aggregated, establishment-level data currently available.
The availability of establishment-specific injury and illness data would also be of great use to county, state and territorial Departments of Health and other public institutions charged with injury and illness surveillance. In particular, aggregation of case-specific injury and illness data from similar establishments could facilitate identification of newly-emerging hazards. Public health surveillance programs must currently primarily rely on reporting of cases seen by medical practitioners, any one of whom would rarely see enough cases to identify an occupational etiology.
Workplace safety and health professionals might use the case-specific data to identify establishments whose injury/illness records suggest that the establishments would benefit from their services. In general, online access to this large database of case-specific injury and illness information could support the development of innovative ideas for improving workplace safety and health, and would allow everyone with a stake in workplace safety and health to participate in improving occupational safety and health.
Furthermore, because the case-specific data would be publicly available, industries, trade associations, unions, and other groups representing employers and workers would be able to evaluate the effectiveness of privately-initiated injury and illness prevention initiatives that affect groups of establishments. In addition, linking these data with data residing in other administrative data sets would enable researchers to conduct rigorous studies that would increase our understanding of injury causation, prevention, and consequences. For example, by combining these data with data collected in the Annual Survey of Manufactures (conducted by the United States Census Bureau), it would be possible to examine the impact of a range of management practices on specific injury and illness types, and in turn the impact of those injury and illness types on the financial status of employers.
And finally, public access to these data would also enable software developers to develop tools that facilitate use of these data by employers, workers, researchers, consumers and others.
OSHA is issuing this proposed rule pursuant to authority expressly granted by several provisions of the OSH Act that address the recording and reporting of occupational injuries and illnesses. Section 2(b)(12) of the OSH Act states that one of the purposes of the OSH Act is to “assure so far as possible . . . safe and healthful working conditions . . . by providing for appropriate reporting procedures . . . which will help achieve the objective of th[e] Act and accurately describe the nature of the occupational safety and health problem.” 29 U.S.C. 651(b)(12). Section 8(c)(1) requires each employer to “make, keep and preserve, and make available to the Secretary [of Labor] or the Secretary of Health and Human Services, such records regarding his activities relating to this Act as the Secretary . . . may prescribe by regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses” (29 U.S.C. 657(c)(1)). Section 8(c)(2) directs the Secretary to prescribe regulations “requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job” (29 U.S.C. 657(c)(2)).
Section 8(g)(1) authorizes the Secretary “to compile, analyze, and publish, whether in summary or detailed form, all reports or information obtained under this section.” Section 8(g)(2) of the Act broadly empowers the Secretary “to prescribe such rules and regulations as he may deem necessary to carry out his responsibilities under th[e] Act.” 29 U.S.C. 657(g)(2).
Section 24 of the OSH Act (29 U.S.C. 673) contains a similar grant of authority. This section requires the Secretary to “develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics” and “compile accurate statistics on work injuries and illnesses which shall include all disabling, serious, or significant injuries and illnesses . . .” (29 U.S.C. 673(a)). Section 24 also requires employers to “file such reports with the Secretary as he shall prescribe by regulation” (29 U.S.C. 673(e)). These reports are to be based on “the records made and kept pursuant to § 8(c) of this Act” (29 U.S.C. 673(e)).
Section 20 of the Act, 29 U.S.C. 669, contains additional implicit authority for collecting and disseminating data on occupational injuries and illnesses. Section 20(a) empowers the Secretaries of Labor and Health and Human Services to consult on research concerning occupational safety and health problems, and provides for the use of such research, “and other information available,” in developing criteria on toxic materials and harmful physical agents. Section 20(d) states that “[i]nformation obtained by the Secretary . . . under this section shall be disseminated by the Secretary to employers and employees and organizations thereof.”
Further support for the Secretary's authority to require employers to keep and submit records of work-related illnesses and injuries can be found in the Congressional Findings and Purpose at the beginning of the OSH Act (29 U.S.C. 651). In this section, Congress declares the overarching purpose of the Act to be “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions” (29 U.S.C. 651(b)). One of the ways in which the Act is meant to achieve this goal is “by providing for appropriate reporting procedures. . .[that] will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem” (29 U.S.C. 651(b)(12)).
The OSH Act authorizes the Secretary of Labor to issue two types of occupational safety and health rules: Standards and regulations. Standards, which are authorized by section 6 of the Act, aim to correct particular identified workplace hazards, while regulations further the general enforcement and detection purposes of the OSH Act (see
This proposed rule does not infringe on employers' Fourth Amendment rights. The Fourth Amendment protects against searches and seizures of private property by the government, but only when a person has a “legitimate expectation of privacy” in the object of the search or seizure (
Even if there were an expectation of privacy, the Fourth Amendment prohibits only unreasonable intrusions by the government (
OSHA notes that two courts have held, contrary to
Additionally, with regard to publication of collected data, FOIA generally supports OSHA's intention to publish information on a publicly available website. FOIA provides that certain Federal agency records must be routinely made “available for public inspection and copying” in agency reading rooms. See, 5 U.S.C. 552(a)(2) (2000). These reading rooms contain basic agency materials such as agency manuals, specific agency policy statements, and opinions developed in the adjudication of cases. Subsection (a)(2) provides that agencies must include any records processed and disclosed in response to a FOIA request that “the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records.”
Based on its experience, OSHA believes that the recordkeeping information from the Forms 300, 301, and 300A required to be submitted under this proposed rule will likely be the subject of multiple FOIA requests in the future. As such, the agency plans to place the recordkeeping information that will be posted on the public OSHA website in its Electronic FOIA Library. Since agencies may “withhold” (
Under proposed § 1904.41(a)(1), establishments that had 20 or more employees at any time during the previous calendar year, and are classified in an industry listed in appendix A to subpart E, would be required to electronically submit information from their OSHA Form 300A to OSHA or OSHA's designee once a year. The current recordkeeping regulation requires two categories of establishments to electronically submit information from their Form 300A to OSHA on an annual basis. First, current § 1904.41(a)(1) requires establishments with 250 or more employees at any time during the previous calendar year, in all industries that are routinely required to keep OSHA injury and illness records, to electronically submit information from their 300A to OSHA once a year. Second, current § 1904.41(a)(2) requires establishments with 20–249 employees at any time during the previous calendar year, in industries listed in appendix A to subpart E of part 1904, to electronically submit information from
The proposed rule would not impose any new requirements on establishments to electronically submit information from their Form 300A to OSHA. All establishments that would be required to electronically submit Form 300A information to OSHA on an annual basis under the proposed rule are already subject to that requirement under the current regulation. This includes all of the establishments with 250 or more employees that would be required to electronically submit information to OSHA under proposed § 1904.41(a)(2), which are already required to submit this information under the current regulation at § 1904.41(a)(1).
As discussed in more detail below, proposed § 1904.41(a) would remove the electronic submission requirement for certain establishments with 250 or more employees. Currently, all establishments of this size in industries routinely required to keep injury and illness records are required to electronically submit information from their Form 300A to OSHA once a year. The proposal requires this submission only for the establishments in industries listed in appendix A. OSHA believes that only a small number of establishments would be excluded by the proposal. In calendar year 2020, 2,665 establishments with 250 or more employees, in an industry not in current appendix A to subpart E, submitted information from their 2019 Form 300A to OSHA. Under proposed § 1904.41(a), these establishments would no longer be required to electronically submit Form 300A data to OSHA.
Additionally, OSHA proposes to revise appendix A to subpart E to update the list of designated industries to conform with the 2017 version of the North American Industry Classification System (NAICS). The Office of Management and Budget, through its Economic Classification Policy Committee (ECPC), reviews and considers revisions for NAICS, a statistical classification system, every five years. In 2016, when OSHA revised § 1904.41, the agency used the 2012 version of NAICS to designate the industries in which establishments with 20–249 employees were required to electronically submit Form 300A data to OSHA. (See current appendix A to subpart E of part 1904). The Office of Management and Budget has since issued two updates to the NAICS codes: 2017 NAICS codes and 2022 NAICS codes. The update from 2012 NAICS to 2017 NAICS would have the benefit of using more current NAICS codes, as well as ensuring that both proposed appendix A and proposed appendix B (referenced in proposed § 1904.41) use the same version of NAICS. As explained below, the industries in proposed appendix B are a subset of the industries in appendix A. Also, the 2017 version of NAICS is the version currently used by BLS for the SOII data that OSHA is using for this rulemaking, and employers are likely more familiar with the 2017 industry codes.
This proposed revision would not impact which industries are covered and therefore required to provide their data.
For proposed (
The proposed revised appendix A is as follows:
OSHA welcomes public comment on the proposed changes to § 1904.41(a)(1).
Section 1904.41(a)(2) of the proposed rule would add a requirement for establishments that had 100 or more employees at any time during the previous calendar year, and that are in an industry listed in proposed appendix B to subpart E, to electronically submit to OSHA or OSHA's designee once a year, certain information from the OSHA Forms 300, 301, and 300A.
The requirement in proposed § 1904.41(a)(2) for the submission of 300A data by establishments with 100 or more employees in industries listed in proposed appendix B to subpart E would not be new. All of the establishments with 100 or more employees in industries listed in proposed appendix B to subpart E are already required to electronically submit 300A data to OSHA once a year under current 29 CFR 1904.41. However, the proposed requirement for the electronic submission of data from the 300 and 301 forms would be new.
As discussed above in the Regulatory History section of this preamble, in 2016, OSHA issued a final rule that revised the recordkeeping regulation at 29 CFR 1904.41 to require establishments with 250 or more employees that are routinely required to keep injury and illness records to electronically submit information from their 300 and 301 forms to OSHA once a year. The 300 and 301 data submission requirement from the 2016 rulemaking was never fully implemented, and OSHA never collected 300 and 301 data electronically from employers covered by the requirements in the 2016 final rule.
In 2019, OSHA issued a final rule that removed the requirement for the annual electronic submission of 300 and 301 data to OSHA. In the preamble to the 2019 final rule, OSHA explained that the 300/301 submission requirement
OSHA has preliminarily determined that the reasons given in the preamble to the 2019 final rule for the removal of the 300 and 301 data submission requirement are no longer compelling. As discussed in more detail below, recent advancements in technology have reduced the risk that information that reasonably identifies individuals directly, such as name and contact information, will be disclosed to the public. The improved technology used to protect sensitive employee data will reduce costs and resource-allocation issues for OSHA by eliminating the need to manually identify and remove information that reasonably identifies individuals directly from submitted data. In addition, the improved technology has decreased the resources required to analyze the data. Moreover, because of these improvements, OSHA is now better able to collect, analyze, and publish data from the 300 and 301 forms, so the anticipated benefits of collecting the data are more certain. The collection of case-specific data will allow the agency to focus its enforcement and compliance assistance resources based on hazard-specific information and trends, and to increase its ability to identify emerging hazards, at the establishment level. Accordingly, at this point, the significant benefits of collecting establishment-specific, case-specific data from the 300 and 301 forms outweigh the slight risk to employee privacy.
To this point in time, OSHA has successfully collected reference year 2016 through 2020 Form 300A data through the OSHA Injury Tracking Application. Approximately 300,000 records have been submitted to the agency each year. OSHA has successfully analyzed these data to identify establishments with elevated injury and illness rates and has focused both its enforcement and outreach resources towards these establishments. This experience demonstrates OSHA's ability to collect, analyze, and use large volumes of data to interact with establishments where workers are being injured or becoming ill. However, this same experience has demonstrated the limits of the data currently collected. For example, OSHA is currently developing a National Emphasis Program to address the hazards associated with environmental heat. Without case-specific injury and illness data, the agency is unable to identify specific establishments where workers are suffering work-related heat disorders. The Summary data from Form 300A do not provide the level of detail required to address specific occupational hazards.
Based on the agency's experience with collecting and using the Form 300A data and the development of a system to auto-code case-specific data, OSHA is now better able to collect, analyze, and publish data from the 300 and 301 forms, so the anticipated benefits of collecting the data are more certain.
As explained in the 2019 final rule, OSHA Forms 300 and 301 contain information that reasonably identifies individuals directly, such as name, contact information, date of birth, and physician name, for the workers who experienced a recordable injury or illness. The OSHA Forms 300 and 301 also contain fields that are not direct identifiers but that could act as indirect identifiers if released and combined with other information, such as job title on the Form 300, time employee began work on the Form 301, and date of death on the Form 301.
In this rulemaking, OSHA has preliminarily determined that the proposed data collection would adequately protect information that reasonably identifies individuals directly, such as name and address, with multiple layers of protection, including by limiting the amount of information submitted by employers; reminding employers not to submit information that reasonably identifies individuals directly; withholding certain fields from disclosure; and using automated information technology to detect and remove information that reasonably identifies individuals directly. In particular, advances in neural networks and machine learning have strengthened OSHA's ability to protect information that reasonably identifies individuals directly.
First, the proposed rule would protect information that reasonably identifies individuals directly by limiting the amount of information submitted by employers. Under proposed § 1904.41(b)(9), for the 300 Log, OSHA does not intend to collect employees' names (column B). For the 301 Incident Report, OSHA will not collect the following information: Employee name (field 1), employee address (field 2), name of physician or other health care professional (field 6), and facility name and address if treatment was given away from the worksite (field 7). Since these fields would not be collected, there would be no risk of public disclosure of the data in these fields.
In addition, OSHA plans to limit the information that reasonably identifies individuals directly collected in the system by posting reminders to employers to omit information that reasonably identifies individuals directly, such as names, addresses, or Social Security numbers, from the text fields they submit. OSHA routinely uses these types of instructions, such as when it requests comments from stakeholders in rulemakings such as this one (see “
Second, OSHA plans to design the collection system to provide extra protections for some of the personal information that employers would be required to submit under the proposal. Specifically, the proposal would require employers to submit the employee's date of birth from OSHA Form 301 (Field 3 on OSHA Form 301). However, the agency plans to design the collection system so that it will immediately calculate the employee's age based on the date of birth entered and then store only the employee's age, not their date of birth.
Third, as described in more detail below, OSHA would seek to protect information that reasonably identifies individuals directly and certain other elements of personal information submitted under the proposed rule by withholding certain fields from public disclosure. The OSHA Form 301, Fields 1 through 9 (the left side of the 301), includes personal information about the injured or ill employee as well as the physician or other health care professional. Under the provisions about access to employees and employee representatives in OSHA's recordkeeping regulation, § 1904.35(b)(2)(v)(A) and (B) prohibit the release of information in fields 1
Fourth, as explained above, consistent with FOIA, OSHA does not intend to release or post information that reasonably identifies individuals directly collected through proposed § 1904.41(a)(2) and, via the use of the protective measures described above and the scrubbing technology described below, the agency preliminarily finds that it can effectively remove such information that reasonably identifies individuals directly before releasing or posting the data. Moreover, OSHA notes that the 2019 rulemaking took an expansive view of the term “PII.” For example, in that rule, OSHA regarded information such as descriptions of workers' injuries and the body parts affected (Field F on Form 300, Field 16 on Form 301), as “quite sensitive,” and stated that public disclosure of this information under FOIA or through the OSHA Injury Tracking Application (ITA) would pose a risk to worker privacy. As further justification for deciding to rescind the requirement to submit information from Forms 300 and 301, the agency stated that “although OSHA believes data from Forms 300 and 301 would be exempt from disclosure under FOIA exemptions, OSHA is concerned that it still could be required by a court to release the data” (84 FR 383).
After further consideration, OSHA has preliminarily determined that the 2019 rule's position on such information is at odds with the agency's usual practice of releasing such data. OSHA currently collects these forms from employers during inspections and, when the agency receives a FOIA request to which these records are responsive, the only field on OSHA Form 300 that is always withheld from disclosure under the FOIA is employee name (column B). Similarly, OSHA has often released the fields on the right-hand side of the OSHA Form 301 (fields 10 through 18) in response to FOIA requests. And the agency has regularly released similar information contained in the OSHA Information System (OIS) database in response to FOIA requests. For example, OSHA regularly releases data in the Hazard Description and Location field in closed cases in OIS, which often contains specific information about injuries. This practice of producing such case-specific information is long-standing, and the agency has not been notified of issues regarding employee identification or re-identification, despite that some of the released fields could act as indirect identifiers if combined with additional information or data external to the agency release or already in the requestor's possession.
In addition, OSHA uses FOIA Exemption 7(c) to withhold from disclosure information that reasonably identifies individuals directly, such as Social Security numbers or telephone numbers, included anywhere on the three OSHA recordkeeping forms. In addition, FOIA Exemption 6 protects information about individuals in “personnel and medical and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.” [5 U.S.C. 552(b)(6)]. Thus, for example, although OSHA sometimes releases information in Field 15 of the 301 incident report (“Tell us how the injury occurred”) in response to a FOIA request, it redacts information that reasonably identifies individuals directly, such as a name or Social Security number, by applying either Exemption 6, which permits the withholding of information contained in personnel and medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, or Exemption 7(C), which protects information found in law enforcement files where disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy.
Finally, OSHA preliminarily finds that existing privacy scrubbing technology is capable of de-identifying certain information that reasonably identifies individuals directly (such as name, phone number, email address, etc.) that may be submitted by employers to the system. As explained in the 2019 rulemaking, in order for OSHA to avoid publishing information that reasonably identifies individuals directly that may be contained within text fields in the employer-submitted 300 and 301 data, information that reasonably identifies individuals directly that has been submitted must be identified and removed. The large volume of information from text fields submitted under the proposed requirement would preclude human review and redaction of information that reasonably identifies individuals directly without great expenditure of resources. However, there are recent advances in automated computer programs that can detect information that reasonably identifies individuals directly, and which can be customized to also replace submitted text strings with placeholder characters or anonymized descriptive phrasing that indicate what type of information was replaced. This replacement process anonymizes and improves readability of the text entry. For example, a telephone number would be replaced with the word “[number]” or “[telephone number],” formatted to indicate a replacement has occurred.
In general, the tasks of detecting and categorizing information that reasonably identifies individuals directly can be accomplished either by automated systems using rules-based methods, machine-learning methods, deep learning, or hybrid approaches using Natural Language Processing (NLP). NLP refers to computer algorithms that both recognize and categorize text strings according to tested business rules. Machine learning methods typically refer to trained automated de-identification using labeled test datasets to develop relationships within the wording of, in this case, text fields in the Forms 300 and 301. With this approach, the statistical likelihood of phrases and wording being information that reasonably identifies individuals directly can be calculated based on evaluating the word or phrase as well as wording around a phrase and throughout the passage. Detection and anonymization rules developed with test datasets can be examined for accuracy, and revised as needed, by applying de-identification protocols to a separate set of test records or review by an independent expert prior to use.
Deep learning systems apply detection algorithms in a fashion that mimics the non-linear processing of human neural networks. “Deep” refers to the number of layers through which the data are examined to extract higher level relationships in the input data. The statistical methods used for this approach are specific to the type of domain and type of information being processed (
AI or machine learning—the technology used to detect, redact, and remove information that reasonably identifies individuals directly from structured and unstructured data fields—has advanced rapidly in recent years. Many vendors, including large commercial vendors, provide solutions for securing information that reasonably identifies individuals directly, including Cloud-based solutions and packages for detecting and redacting or removing information that reasonably identifies individuals directly from unstructured text like the OSHA 300 and 301 data fields. For example, Vendor A has a natural-language processing (NLP) service that uses machine learning to identify key words and phrases in unstructured text to detect and redact information that reasonably identifies individuals directly by replacing the term of interest with a character. Vendor A's service automatically identifies personal (
OSHA intends to test multiple AI or machine learning methods, including commercial services, and analyze the results carefully to select the best option to secure and protect information that reasonably identifies individuals directly, such as name and address. No option, including a manual review, is 100% effective. Therefore, OSHA could consider a combination of the selected scrubbing application supplemented by some manual review of the data to protect information that reasonably identifies individuals directly.
In summary, OSHA preliminarily finds that the agency would be able to adequately protect workers' information that reasonably identifies individuals directly (such as name and address) using the safeguards in the proposed rule and OSHA's planned data collection system, in combination with warnings to employers and available automated information technology. In addition, the use of the automated informational technology would significantly decrease the need for the type of resource-intensive manual reviews that OSHA was concerned about in the 2019 rulemaking. Moreover, even if some of these data were ultimately used to identify employees, OSHA preliminarily finds that the benefits of collecting and publishing the data for improving safety and health outweigh potential privacy problems. As discussed below, the proposed data collection will further OSHA's statutory mission to assure safe and healthful working conditions for working people by providing data information for OSHA's targeting and compliance assistance efforts.
OSHA expects a Privacy Impact Assessment to be completed before issuing the final rule. OSHA welcomes public comment on the issue of collecting data that includes PII and protecting information that reasonably identifies individuals directly such as name and address from disclosure.
In addition to the worker privacy concerns, OSHA's decisions in the 2019 final rule relied in part on resource concerns. The agency preliminarily finds that these concerns are no longer compelling, in part, because recent technological developments in automated data coding for text-based fields have made it easier and more cost effective for OSHA to efficiently use electronically-submitted, establishment-specific, case-specific injury and illness data to improve OSHA's ability to identify, target, and remove workplace safety and health hazards, resulting in the prevention of work-related fatalities, injuries, and illnesses. The specific estimated cost burden on OSHA and employers for data collection is discussed in the Preliminary Economic Analysis section, below.
The primary information technology improvement relates to the coding of data. Specifically, in order to enable OSHA and stakeholders to undertake statistical analyses of information in text fields in the Forms 300 and 301, which include details regarding the circumstances and causes of workplace injuries and illnesses, OSHA intends to use automated systems to assign standardized codes based on the information contained in the text fields (
Standardized coding of information from text fields in Forms 300 and 301 is already being done by BLS. Each year, BLS collects SOII data from sampled OSHA Forms 300 and 301, with approximately 300,000 written descriptions of work-related injuries and illnesses collected by the survey. BLS uses the information provided on these OSHA forms to generate detailed statistics on the case characteristics of work-related injuries or illnesses. In order to generate statistics, the text entries in the OSHA forms must be converted to standard BLS codes.
SOII data are coded according to the BLS Occupational Injury and Illness Classification System (OIICS) (Version 2.01). Specific codes are assigned to the
When codes were assigned manually, overall accuracy was around 71%. Accuracy with neural network autocoding was around 82%. Autocoding could be used for all the information collected but performance was worse on rarer codes. BLS decided to use a combination of autocoding and manual coding. From 2014 to 2017, the percent of codes automatically assigned rose to around 67%, but autocoding had reached a point of diminishing returns.
With the old autocoder previously coded narratives were broken up into smaller pieces, typically individual words and short word sequences, and used to estimate how strongly each piece was associated with each possible code. New narratives were then coded by identifying their individual pieces and aggregating the previously learned associations to choose the most closely associated code. Some of the problems with the old autocoder included only identifying words in a phrase without thought to context,
However, in 2018, BLS switched to deep neural networks. Like the older autocoder, neural networks rely on training data to learn and improve their accuracy over time. 2017 research found that the neural network autocoder outperformed the alternatives across all coding tasks and made an average of 24% fewer errors than the logistic regression autocoders, and an estimated 39% fewer errors than the manual coding process. On each task the neural network's accuracy was statistically greater than the next best alternative at a p-value of 0.001 or less.
The BLS system is already collecting data using OSHA Forms 300 and 301, so OSHA should be able to mirror the BLS system to code the OSHA data fairly easily. OSHA could use the BLS source code to create a pilot system where the autocoding of realistic OSHA data could be tested and compared to manual coding of the same data. Upon successful testing and adoption of the BLS system, OSHA plans to consult and work with BLS for the long-term system maintenance to continuously update the neural network code and refine automation of the data.
Once the data were coded, OSHA would be able to use the data similarly to how the agency currently uses coded data from the Severe Injury Reporting (SIR) program. The SIR Program collects data on all severe work-related injuries and illnesses, defined as an amputation, in-patient hospitalization, or loss of an eye. Under OSHA's recordkeeping regulation at 29 CFR 1904.39, employers must report certain information about these severe injuries/illnesses to OSHA within 24 hours of occurrence. On a monthly basis, OSHA reviews the SIR data and trained analysts assign OIICS codes (nature, part, event, and source) for each SIR narrative, thus making the data searchable/query-able and more useful for agency programs. See Docket exhibit OSHA–2021–006–0005 for an example of a search interface for the data that would be collected under this proposal. OSHA could also combine the coded data with other data sources (
In making these preliminary findings for this rulemaking, OSHA notes that some autocoding information technology was available during the 2019 rulemaking. In fact, in the 2018 NPRM, OSHA specifically requested comment on other agencies or organizations that use automated coding systems for text data in data collections (83 FR 36494, 36500). Commenters on this issue urged OSHA to consult with other agencies that collect this type of data, including the National Institute for Occupational Safety & Health (NIOSH), the Mine Safety and Health Administration (MSHA), BLS, the Federal Railroad Administration (FRA), and the Federal Aviation Administration (FAA), to learn about database design and best practices for collecting this kind of data (84 FR 389). In its own comments, NIOSH noted that it had already developed autocoding methods for categorizing occupation and industry based on free text data and had successfully utilized similar free text data collected from workers' compensation claims (84 FR 389). NIOSH also generously offered to help OSHA with data analysis (84 FR 389).
After reviewing these comments to the 2018 NPRM, OSHA determined that “NIOSH's ability to analyze data collected from Forms 300 and 301 does not reduce the burden on OSHA to collect the data. Even if NIOSH could make the data useful for OSHA's enforcement targeting and outreach efforts, which NIOSH itself has suggested would present analytical challenges due to the volume of the data, OSHA and employers would be left covering the expense of collection, not to mention additional expense associated with the need to process and otherwise manually review data from the forms—costs that would detract from OSHA's priorities of enforcement and compliance assistance to reduce workforce hazards” (84 FR 389). Ultimately, OSHA determined that any benefits of electronically collecting the Form 300 and 301 data were outweighed by the cost of developing a system to manage that volume of data, particularly when making use of the data would divert resources away from OSHA's then-current priority of fully utilizing Form 300A and severe injury data for targeting and outreach (84 FR 389).
In this proposal, OSHA has specific information from BLS regarding its technology. Following conversations with BLS since the 2019 rulemaking, OSHA is confident that it would be able to utilize similar technology in a cost-effective manner to code the data from OSHA Forms 300 and 301, avoiding many of the resource concerns specified in the 2019 rulemaking. Moreover, as discussed in more detail below, OSHA has preliminarily determined that benefits to worker safety and health far outweigh the potential costs of the systems necessary to collect these data, make them useful for analysis, analyze them, and publish them for stakeholder use.
In summary, available technology, including recent improvements in autocoding information technology, would enable OSHA to efficiently autocode the data from electronically-
The value of the new de-identification and autocoding information technology discussed is significant. Most importantly, the new autocoding technology will allow OSHA to more effectively focus its enforcement and compliance assistance resources on specific establishments experiencing safety and health problems. Access to case-specific injury and illness data will also allow OSHA to better identify safety and health hazards. For example, unlike 300A data, which include heat illnesses in the category “all other illnesses” (Field M6), 300 and 301 data would allow OSHA to identify establishments with heat illnesses and allow the agency to focus its enforcement and compliance assistance resources on specific industries or types of workplaces with that specific hazard. Similarly, 300A data group all injuries into the single category “injuries” (Field M1), but 300 and 301 data would allow OSHA to identify establishments whose delivery workers experience different types of injuries, such as traffic violence injuries or lifting injuries.
In addition, reliance on only 300A data limits OSHA's ability to analyze and address existing workplace hazards. For example, the collection of 300A data provides OSHA with access to general information about certain illnesses, such as recorded cases involving work-related respiratory illness. However, the collection of 300A data does not provide OSHA with information about specific respiratory illnesses, such as cases involving work-related COVID–19. On the other hand, the collection and analysis of case-specific data would allow OSHA to identify specific establishments that have experienced recorded cases of work-related COVID–19, which could result in OSHA enforcement efforts and compliance assistance at that facility.
Similarly, together with the other protections proposed for the data collection, the new de-identification technology will allow OSHA to make the establishment-specific, case-specific, data publicly available in both coded and uncoded form, increasing workplace safety and health while providing protection against release of PII. Employers, employees, employee representatives, potential employees, customers and potential customers, workplace safety consultants, and members of the general public will all benefit from access to this information in a timely manner. For example, potential employees and potential customers will be able to review case-specific injury and illness data to make informed decisions on whether to seek employment at, or whether to do business with, a specific establishment. In turn, with heightened public awareness of injuries and illnesses at a given establishment, individual employers will be encouraged to increase their focus on enhancing workplace safety and health at their facility.
In addition, researchers will have access to a detailed, case-specific, establishment-specific dataset of work-related recordable injuries and illnesses, improving their ability to conduct occupational-health studies, as well as identify increasing or emerging hazards. For example, access to case-specific information could be extremely useful to individuals and public health agencies conducting research on the causes and prevention of work-related COVID–19.
In summary, OSHA preliminarily finds that the benefits for worker safety and health of collecting, analyzing, and publishing data from Forms 300 and 301 outweigh the cost of the actual collection, analysis, and publication of those data, which have been reduced since the 2019 rule. The agency invites comment on this preliminary determination.
Once OSHA has removed PII and coded the case-specific injury and illness data submitted by employers, the agency plans to make the data available and able to be queried via a web-based tool. Stakeholders (including employers, employees, job-seekers, customers, researchers, workplace safety consultants, and the general public) who are interested in learning about occupational injuries and illnesses will have access to information on when injuries and illnesses occur, where they occur, and how they occur. Stakeholders could also use such a tool to analyze injury and illness data and identify patterns that are masked by the aggregation of injury/illness data in existing data sources.
Tool functionality could include:
• The ability to compare rates with other establishments by industry sector, occupation, size, region, and other variables.
• The ability to track trends and emerging hazards over time.
• Easy searches by common variables such as OIICS category (
• Provision of related data including workplace-specific violations, and demographic and economic data for reporting industries, to help contextualize the injury and illness data.
• Links to resources useful in increasing workplace safety such as best practices for the industry, injury reduction interventions, and other current health and safety information.
• Options for data visualization of the submitted data (
• Flexibility for accommodating the different needs of different types of users (for example, an employee might only want to access information on one establishment, while a researcher may want to analyze data across an entire industry sector).
• Application programming interfaces (APIs) that allow other web-based tools to retrieve, process, and publish publicly-accessible OSHA data.
In developing a publicly-accessible tool for injury and illness data, OSHA would review how other federal agencies, such as the Environmental Protection Agency (EPA), have made their data publicly available via online tools that support some analyses. Examples of EPA tools include:
• Toxics Release Inventory Program Pollution Prevention (P2) Tool (
• Enforcement and Compliance History Online (ECHO,
• Envirofacts (
• Enviromapper (
• Discharge Monitoring Report (DMR) Pollutant Loading Tool (
• Facility Level Information on Greenhouse Gases Tool (FLIGHT,
Thus, OSHA preliminarily finds that available tools could enable stakeholders to use OSHA-published data from Forms 300 and 301 to improve worker safety and health. OSHA welcomes public comment on the utility of these data for researchers, employers, and other stakeholders, as well as on available data tools that would enable these stakeholders to efficiently use OSHA-published establishment-specific, case-specific data to improve worker safety and health.
In proposed § 1904.41(a)(2), for establishments with 100 or more employees, OSHA is seeking to balance the utility of the information collection for enforcement, outreach, and research, on the one hand, and the burden on employers to provide the information to OSHA, on the other hand. The 2016 final rule, which was subsequently rescinded, required submission of information from the OSHA Form 300, 301, and 300A from all establishments with 250 or more employees in industries routinely required to keep part 1904 injury and illness records. In the 2016 final rule, OSHA estimated that establishments with 250 or more employees covered by that section of the submission requirement would report 713,397 injury and illness cases per year.
For this rulemaking, to identify the appropriate balance of utility versus burden, OSHA analyzed five years of injury and illness summary data collected through OSHA's Injury Tracking Application (ITA). OSHA examined combinations of establishment size and industry hazardousness that, like the 2016 final rule, would provide the agency with information on roughly 750,000 cases of injuries and illnesses per year. Based on this analysis, OSHA is proposing a reporting requirement for establishments with 100 or more employees in 4-digit NAICS (2017) industries that:
1. Had a 3-year-average rate of total recordable cases (Total Case Rate, or TCR) in the BLS SOII for 2017, 2018, and 2019, of at least 3.5 cases per 100 full-time-equivalent employees, and
2. are included in proposed appendix A to subpart E. (All of the industries in proposed appendix B are also in appendix A.)
OSHA proposes to list the designated industries required to submit data from all three recordkeeping forms under proposed § 1904.41(a)(2) in proposed appendix B to subpart E.
OSHA is proposing one exception to these criteria, for the United States Postal Service (USPS), which is the only employer in NAICS 4911 Postal Service. BLS does not include USPS in the SOII. However, under the Postal Employees Safety Enhancement Act (Pub. L. 105–241), OSHA treats the USPS as a private sector employer for purposes of occupational safety and health, and establishments in NAICS 4911 (
In the 2016 final rule that revised § 1904.41, OSHA used the rate of cases with days away from work, job restriction, or transfer (DART) from the BLS SOII to determine the industries included in appendix A to subpart E of part 1904. However, proposed appendix B to subpart E is based on the TCR, which includes both cases resulting in days away from work, job restriction, or transfer, as well as other recordable cases such as those resulting in medical treatment beyond first aid. OSHA believes that TCR is the appropriate rate to use for determining the list of industries in proposed appendix B to subpart E because covered establishments will be required to electronically submit information to OSHA on all of their recordable cases, not just cases that resulted in days away from work, job restriction, or transfer. In 2020, OSHA received submissions of 2019 Form 300A data from 46,911 establishments that had 100 or more employees and were in one of the industries listed in proposed appendix B to subpart E, accounting for 680,930 total recordable cases and a TCR of 3.6. OSHA requests comment on whether TCR is the appropriate method for determining the list of industries in proposed appendix B to subpart E.
Additionally, OSHA anticipates that, by the time that the department expects to issue the final rule in this rulemaking, more current industry-level injury and illness data from BLS, as well as more establishment-specific injury and illness information from the ITA, will be available. When developing the final rule, OSHA may rely on the most current data available, as appropriate, for determining the list of industries in appendix B to subpart E. OSHA seeks comment from the public on whether the agency should use the most current data when developing the final rule.
The designated industries, which would be published as appendix B to subpart E of part 1904, are proposed to be as follows:
OSHA welcomes public comment on all aspects of proposed appendix B, including the specific issues noted above.
Proposed § 1904.41(b)(1) would provide employers with further clarity on which employers and establishments need to submit data under proposed § 1904.41(a)(1) and (2) and how the requirements of those provisions interact with each other. These proposed provisions, like many of the provisions within part 1904 are written in question-and-answer format to help employers easily identify the information they seek.
Proposed § 1904.41(b)(1)(i) focuses on the issue of who must submit their information to OSHA. Specifically, it would reiterate the question posed in current § 1904.41(b) (which asks whether every employer has to routinely make an annual electronic submission of information from part 1904 injury and illness recordkeeping forms to OSHA), but update the answer to be consistent with proposed § 1904.41(a)(1) and (2).
Proposed § 1904.41(b)(1)(ii) would similarly clarify that an establishment that has 100 or more employees, and is in an industry included in both appendix A and appendix B, need only make one submission of the OSHA Form 300A in order to fulfill the requirements of both proposed § 1904.41(a)(1) and (2). Proposed appendix B is a subset of appendix A;
OSHA welcomes public comment on proposed § 1904.41(b)(1)(i) and (ii), including whether these proposed provisions appropriately clarify the proposed requirements for employers.
Proposed § 1904.41(b)(9) would pose and answer a question regarding which information would be required to be submitted under proposed § 1904.41(a). Specifically, proposed § 1904.41(b)(9) would ask the following question: If I have to submit information under paragraph (a)(2) of this section, do I have to submit all of the information from the recordkeeping forms?
The proposed answer would clarify that OSHA will not require employers to submit the following case-specific information from the OSHA Form 300 and Form 301:
• Log of Work-Related Injuries and Illnesses (OSHA Form 300): Employee name (column B).
• Injury and Illness Incident Report (OSHA Form 301): Employee name (field 1), employee address (field 2), name of physician or other health care professional (field 6), facility name and address if treatment was given away from the worksite (field 7).
Collecting data from these fields would not add to OSHA's ability to identify establishments with specific hazards or elevated injury and illness rates. Therefore, OSHA proposes to exclude these fields from the submittal requirements to minimize any potential release or unauthorized access to any PII contained in the fields. Because the data collection will not collect the information from these fields, there will be no risk of public disclosure of the information from these fields through the data collection.
OSHA welcomes public comment on § 1904.41(b)(9), including whether the specified fields should be excluded from data that would be collected, and whether other data should be similarly excluded to protect employee privacy or for other reasons. Any comments suggesting exclusion of other fields or data from the proposed submission requirements should also address whether the exclusion of that particular field or data from collection would hinder OSHA's ability to use the collection to protect employee safety and health.
Proposed § 1904.41(b)(10) would address an issue related to how establishments identify themselves in their electronic recordkeeping submissions. As noted above, OSHA's recordkeeping regulation requires employers to maintain and report their injury and illness data at the establishment level. An establishment is defined as a single physical location where business is conducted or where services or industrial operations are performed (see 29 CFR 1904.46). Part 1904 injury and illness records must be specific for each individual establishment.
Under the current requirements at 29 CFR 1904.41, a firm with more than one establishment must submit establishment-specific 300A data for each establishment that meets the size and industry reporting criteria. OSHA's current data submission portal, the Injury Tracking Application (ITA), contains two text fields used to identify an establishment, Company Name and Establishment Name. The Establishment Name field is a mandatory field; the user must make an entry in that field. In addition, a user submitting information for more than one establishment must provide a unique Establishment Name for each establishment. In contrast, the Company Name field is an optional field; the user is not required to make an entry in that field.
OSHA's review of five years of data electronically submitted under part 1904.41 shows that many large firms with multiple establishments use codes for the Establishment Name field in their submission. A subset of these firms use codes for the Establishment Name field and do not provide a company name in the Company Name field. For example, in the 2020 submissions of 2019 Form 300A data, users submitted data for more than 18,000 establishments with a code in the Establishment Name field and no information in the Company Name field.
Unfortunately, the data are considerably less useful and more difficult to work with when establishments have a code in the Establishment Name field and no information in the Company Name field. For example, it is not possible for a data user to search for data from that company. In addition, OSHA is unable to determine whether or not a particular establishment in that company met the reporting requirements. Further, since OSHA now makes these data publicly available, the use of codes and the lack of information in the Company Name field may hamper stakeholders' and researchers' ability to use the information.
To date, OSHA has made an effort to identify and assign company names to these establishments. For example, sometimes OSHA is able to use the EIN or the user's email address to identify the company associated with the establishment. However, OSHA is not always able to identify the company. In addition, the effort requires substantial review for verification.
To address this problem, OSHA proposes to require employers who use codes for the Establishment Name to include a legal name in the Company Name field. This requirement would be spelled out in question-and-answer format in proposed § 1904.41(b)(10). The proposed provision would provide: My company uses numbers or codes to identify our establishments. May I use numbers or codes as the establishment name in my submission? Yes, you may use numbers or codes as the establishment name. However, the submission must include the legal company name, either as part of the establishment name or separately as the company name.
OSHA welcomes public comment on the proposed requirement to submit the company name, including any comments on the utility of such a requirement and how the company name should be included in an establishment's submission.
Proposed § 1904.41(c) would simplify the regulatory language in current § 1904.41(c)(1)–(2) concerning the dates by which establishments must make their annual submissions. Current § 1904.41(c)(1) included information for establishments on what to submit to OSHA during the phase-in period of the 2016 final rule and the deadline for submission. That information is no longer relevant and, thus, OSHA proposes to remove it to streamline the section.
The substantive information already contained in current § 1904.41(c)(1) would then be consolidated into proposed § 1904.41(c). Like current § 1904.41(c)(1), proposed § 1904.41(c) would require all covered establishments to make their electronic submissions by March 2 of the year after the calendar year covered by the form(s). Proposed § 1904.41(c) would also provide an updated example of that requirement,
OSHA welcomes public comment on these proposed revisions to § 1904.41(c).
OSHA welcomes comments and data from the public regarding any aspect of the proposed amendments to § 1904.41 Electronic Submission of Employer Identification Number (EIN) and Injury and Illness Records to OSHA. OSHA is particularly interested in any comments on these specific questions:
1. Is Total Case Rate (TCR) the most appropriate incidence rate to use for proposed appendix B to subpart E, or would the Days Away Restricted or Transferred (DART) rate be more appropriate?
2. Is 100 or more employees the appropriate size criterion for the proposed requirement to electronically submit data from the OSHA Form 300, 301, and 300A? Would a different size criterion be more appropriate?
3. Is it appropriate for OSHA to remove the requirement for establishments with 250 or more employees, in industries not included in appendix A, to submit the information from their OSHA Form 300A?
4. Are there electronic interface features that would help users electronically submit part 1904 data, particularly for case data from the OSHA Form 300 and Form 301 and for establishments that submit using batch files? For example, would it be helpful for OSHA to provide a forms package or software application that exports the required files into a submission-ready format?
5. What features could OSHA provide to help establishments determine which submission requirements apply to their establishment?
6. What additional guidance could OSHA add to the instructions for electronic submission to remind employers not to include information that reasonably identifies individuals directly in the information they submit from the text-based fields on the OSHA Form 300 or Form 301?
7. What other agencies and organizations use automated de-
8. What other open-source and/or proprietary software is available to remove information that reasonably identifies individuals directly from text data?
9. What methods or systems exist to identify and remove information that reasonably identifies individuals directly from text data before the data are submitted?
10. What criteria should OSHA use to determine whether the sensitivity of automated systems to identify and remove information that reasonably identifies individuals directly is sufficient for OSHA to make the data available to the general public?
11. What processes could OSHA establish to remove inadvertently-published information that reasonably identifies individuals directly as soon as OSHA became aware of the information that reasonably identifies individuals directly?
12. OSHA is proposing not to collect employee names under proposed § 1904.41(a)(2) and (b)(9), consistent with worker privacy concerns expressed in public comments during previous rulemakings. However, BLS uses the “employee name” field on the Form 300 and Form 301 in their data collection for the SOII. Beginning in 2021, a data-sharing feature has allowed some establishments that are required to submit Form 300A information to both OSHA and BLS, under the current regulation, to use their data submission to the OSHA ITA in their submission to the BLS SOII. BLS anticipates an inability to use this data-sharing feature for establishments required to submit under proposed § 1904.41(a)(2), unless OSHA requires these establishments to submit the “employee name” field on the Form 300 and 301. Without the data-sharing feature, establishments that submit data to OSHA under proposed § 1904.41(a)(2), and that also submit data to the BLS SOII, would not be able to use their OSHA data submission of case-specific data to prefill their BLS SOII submission. What would be the advantages and disadvantages, in terms of employer burden and worker privacy concerns or otherwise, of requiring all establishments subject to proposed § 1904.41(a)(2) to submit employee names, to support this data-sharing feature for Form 300 and 301 submissions? (Please note that OSHA would not intend to publish employee names.)
13. NAICS codes are reviewed and revised every five years to keep the classification system current with changes in economic activities. The 2022 NAICS became effective on January 1, 2022. Going forward, OSHA intends to use the 2022 NAICS in the ITA for establishments that are newly creating accounts. However, for establishments that already have accounts in the ITA, the version of NAICS used is the 2012 NAICS. BLS anticipates that establishments that already have accounts in the ITA, are also subject to the SOII, and have 2022 NAICS codes that are different from their 2012 NAICS codes, would be unable to use the data-sharing feature (also discussed in question 13) to prefill their BLS SOII submission with data already submitted through the OSHA ITA, unless these establishments updated their accounts to revise their industry classification from the 2012 NAICS to the 2022 NAICS. What are the advantages and disadvantages of requiring establishments that already have accounts in the ITA to update their accounts to the 2022 NAICS? How much time would an establishment require to determine whether their 2022 NAICS is different from their 2012 NAICS? How much time would an establishment require to edit their NAICS code in the ITA to reflect any changes?
14. In addition to the automated methods for coding text-based data discussed above, what additional automated methods exist to code text-based data?
15. What are some ways that employers could use the collected data to improve the safety and health of their workplaces?
16. What are some ways that employees could use the collected data to improve the safety and health of their workplaces?
17. What are some ways that federal and state agencies could use the collected data to improve workplace safety and health?
18. What are some ways that researchers could use the collected data to improve workplace safety and health?
19. What are some ways that workplace safety consultants could use the collected data to improve workplace safety and health?
20. What are some ways that members of the public and other stakeholders, such as job-seekers, could use the collected data to improve workplace safety and health?
21. Are there potential negative consequences to the collection of this data that OSHA has not considered here?
22. The proposed regulatory text is structured as follows: § 1904.41(a)(1) Annual electronic submission of information from OSHA Form 300A Summary of Work-Related Injuries and Illnesses by establishments with 20 or more employees in designated industries; § 1904.41(a)(2) Annual electronic submission of information from OSHA Form 300 Log of Work-Related Injuries and Illnesses, OSHA Form 301 Injury and Illness Incident Report, and OSHA Form 300A Summary of Work-Related Injuries and Illnesses by establishments with 100 or more employees in designated industries. This is the structure used by the 2016 and 2019 rulemakings. An alternative structure would be as follows: § 1904.41(a)(1) Annual electronic submission of information from OSHA Form 300A Summary of Work-Related Injuries and Illnesses by establishments with 20 or more employees in designated industries; § 1904.41(a)(2) Annual electronic submission of information from OSHA Form 300 Log of Work-Related Injuries and Illnesses and OSHA Form 301 Injury and Illness Incident Report by establishments with 100 or more employees in designated industries. Which structure would result in better understanding of the requirements by employers?
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of the intended regulation and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, and public health and safety effects; distributive impacts; and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not an economically significant regulatory action under section 3(f) of Executive Order 12866 and has been reviewed by the Office of Information and Regulatory Affairs in the Office of Management and Budget, as required by executive order.
OSHA estimates that this rule will have economic costs of $4.3 million per year, including $3.9 million per year to the private sector, with average costs of $81 per year for affected establishments
The proposed rule is not an economically significant regulatory action under Executive Order 12866 or the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1532(a)), and it is not a “major rule” under the Congressional Review Act (5 U.S.C. 801
OSHA is proposing to amend its recordkeeping regulations to revise the requirements for the electronic submission of information from part 1904 injury and illness recordkeeping forms
First, OSHA will require all establishments that have 20 or more employees and are in certain designated industries to electronically submit information from the OSHA Form 300A Annual Summary to OSHA or OSHA's designee once a year (
The current requirement (
Second, OSHA will require all establishments that have 100 or more employees and are in certain designated industries to electronically submit information from the OSHA Forms 300, 301, and 300A to OSHA or OSHA's designee (
As discussed above, the current § 1904.41(a)(1) Annual electronic submission of OSHA Form 300A Summary of Work-Related Injuries and Illnesses by establishments with 250 or more employees requires submission of the Form 300A from all establishments that have 250 or more employees and that are in industries routinely required to keep part 1904 records. Under the proposed revisions, establishments that have 250 or more employees would only have to routinely make electronic submissions of part 1904 information if they are in an industry in appendix A to subpart E (proposed § 1904.41(a)(1)) or in appendix B to subpart E (proposed § 1904.41(a)(2)), which is a subset of appendix A. The proposed rule will remove the requirement for routine electronic submission of Form 300A information from establishments with 250 or more employees in all other industries (
Under proposed § 1904.41(b)(9), OSHA will not collect the following case-specific information from the Form 300 and Form 301 submitted by establishments with 100 or more employees in designated industries under proposed § 1904.41(a)(2):
(i) Log of Work-Related Injuries and Illnesses (OSHA Form 300): Employee name (column B).
(ii) Injury and Illness Incident Report (OSHA Form 301): Employee name (field 1), employee address (field 2), name of physician or other health care professional (field 6), facility name and address if treatment was given away from the worksite (field 7).
The OSHA Form 300A does not have any case-specific information.
In addition, under proposed § 1904.41(b)(10), OSHA will require establishments that are required to electronically report information from their injury and illness records to OSHA under part 1904, to include their company name as part of the submission.
Finally, OSHA proposes language in proposed § 1904.41(b)(1)(i) and (ii) to further clarify the requirements spelled out in proposed § 1904.41(a)(1) and (2) and current § 1904.41(a)(3), and, in proposed § 1904.41(c), OSHA proposes updates to the reporting deadlines.
Currently, two groups of establishments are required to submit information from the Form 300A annual summary, under two separate requirements: § 1904.41(a)(1) For all establishments with 250 or more employees in all industries where establishments must routinely keep part 1904 injury and illness records, and § 1904.41(a)(2) for establishments with 20 or more employees in the industries designated in appendix A to subpart E.
In contrast, under the proposed revisions, only establishments with 20 or more employees in the industries designated in appendix A to subpart E would be required to submit information from the Form 300A annual summary. (As noted above, although proposed § 1904.41(a)(2) also requires employers in the industries designated in appendix B to submit information from their Form 300A annual summary, those industries are a subset of the industries listed in appendix A, so no new submission would be required (see proposed § 1904.41(b)(1)). Thus, the net effect of this section is to reduce the number of establishments that are required to submit information from the Form 300A annual summary. This section calculates the cost savings resulting from the reduction in number of establishments that are required to submit information from the Form 300A annual summary.
For this part of the proposed rule, OSHA obtained the estimated cost of electronic hour (in dollars) of the person expected to perform the task of electronic submission by multiplying the estimated total compensation per hour (in dollars) of the person expected to perform the task of electronic submission by the time required for the electronic data submission. OSHA estimated occupation-specific wage rates from BLS 2020 Occupational Employment and Wage Statistics data (BLS, May 2020), reporting a mean hourly wage of $37.55 for Occupational Health and Safety Specialists (19–5011 in the 2018 Standard Occupational
Next, OSHA used June 2021 data from the BLS National Compensation Survey, reporting a mean fringe benefit factor of 1.45 for civilian workers in general.
For time required for the data submission, OSHA used the time estimate of 10 minutes per establishment for the OSHA Form 300A from the current information collection for Recordkeeping and Reporting Occupational Injuries and Illnesses (29 CFR part 1904) (OMB Control Number 1218–0176). OSHA then multiplied this time by the total compensation of $60.96 per hour to obtain an estimated submission cost per establishment of $10.16 [($60.96/hour) × (1 hour/60 minutes) × (10 minutes)].
Then OSHA multiplied this submission cost per establishment by the estimated number of establishments that would no longer be required to submit data, to obtain the total estimated cost savings of this part of the proposed rule. In the 2020 data collection, there were 2,665 establishments with 250 or more employees, in an industry not in appendix A, which submitted information from the 2019 OSHA Form 300A to OSHA.
Thus, OSHA estimates the total annual cost savings of this part of the proposed rule as $27,077 [(2,665 establishments no longer required to electronically submit Form 300A information) × ($10.16 per establishment for electronic submission of Form 300A information per year)].
OSHA welcomes public comment on this estimate.
This proposed section would require establishments that have 100 or more employees and that are in the industries included in proposed appendix B to submit the information from the OSHA Form 300 Log, OSHA Form 301 incident report, and OSHA Form 300A annual summary. Note that all of the establishments affected by this requirement are already currently required to submit the information from their OSHA Form 300A. Consequently, this section calculates only the additional costs for these establishments of submitting the information from the OSHA Form 300 and 301.
Based in part on OSHA's previous experience, the agency estimates that establishments will first need to take 10 minutes, on average, to familiarize themselves with changes to the existing recordkeeping requirements within this proposed rule.
In the 2020 data collection of 2019 OSHA Form 300A data, establishments with 100 or more employees, in appendix B industries, reported 718,316 cases to OSHA. For time required for data submission of the OSHA Form 300 and 301, OSHA estimates 10 minutes per case, based on the current Information Collection Request (ICR). Note that this may overestimate costs, because while OSHA's estimates reflect manual entry of the data for each case, in the agency's experience, roughly half of the covered establishments submit data to the ITA by uploading a batch file. In general, OSHA expects companies with many establishments/many cases to have computer systems that can export their part 1904 injury and illness recordkeeping data into an easily-uploaded file format. OSHA seeks comment on this point.
OSHA estimates that half of the establishments submitting reports (24,460) will submit 359,193 cases total (half of the overall total number of 718,386 cases) via batch file—one batch file per establishment.
OSHA estimates that the other half of the establishments (24,460) will manually submit each case individually. The mean number of cases per establishment is 14.7 (718,386 total cases divided by 48,919 total establishments). For manual submission, OSHA estimates a time of 10 minutes per case, or 147 minutes per establishment for the mean number of cases. This produces a total cost for manual submission of $3,649,520 [(48,919 establishments) times (10 minutes/case) times (14.7 cases) times (1 hour/60 minutes) times ($60.96/hour)], or $149 per establishment [(14.7 cases) times (1 hour/60 minutes) times ($60.96/hour)].
Summing the estimated batch-file ($248,517) and manual submission ($3,649,520) costs results in an estimated total cost of $3,898,037 to submit the 718,316 records. Combined with the annualized cost of $70,782 per year for familiarization estimated above (at seven percent), the estimated total annual private-sector cost of this part of the proposed rule is $3,968,819. To obtain the estimated average cost of submission per establishment of $81.13, OSHA divided the total estimated cost of submission ($3,968,819) by the estimated number of establishments that would be required to submit data (48,919 establishments).
For reference, as explained above, 48,919 establishments with 100 or more employees, in proposed appendix B, submitted CY 2019 Form 300A information about 718,386 cases to OSHA in 2020. The mean number of cases per establishment is 14.7, and the median number of cases per establishment is seven. However, some establishments will have no recordable injuries in a given year, and their time burden will be zero minutes. In contrast, establishments with many recordable injuries and illnesses could have a time burden of multiple hours if they enter the data manually. OSHA preliminarily believes that the establishments that submit a single batch file are more likely to be among the establishments with many cases, while the establishments that submit cases manually are more likely to be among the establishments with only a few cases. Thus, OSHA's estimate of half of establishments submitting half of cases manually may result in an overestimate of the total and per-establishment costs of this part of the proposed rule.
OSHA welcomes public comment on these estimates, including on time necessary to prepare and submit a batch file and on establishments' considerations for deciding to submit via batch file versus manual submission.
This proposed section would require establishments to provide their company name as part of their submission, either included in the establishment name or separately as the company. For this part of the proposed rule, based on submissions of information from the 2019 Form 300A to the ITA in 2020, OSHA estimates that 18,182 establishments do not include the company name. The time necessary to include the company name is included in the PEA estimate of 10 minutes per submission per establishment. OSHA has also preliminarily determined that this requirement will result in a small, unquantified benefit/cost-savings for the government, due to no longer needing to spend time trying to assign company names to establishments with coded names.
OSHA welcomes public comment on these preliminary determinations.
In this preliminary economic analysis, OSHA is including an estimate of the costs of the proposed new requirement, because these costs represent a significant fraction of the total costs of the new requirement. OSHA received estimates for the costs from the US Department of Labor Office of the Chief Information Officer (DOL OCIO).
Based on the DOL OCIO estimates shown in the table below, OSHA is estimating that modification of the reporting system hardware and software infrastructure to accept submissions of Form 300 and 301 data will have an initial one-time cost of $1.2 million.
Annualized over 10 years at a seven percent discount rate, $1.2 million is $170,853 per year, or $140,677 annualized over 10 years at three percent. OSHA also estimates $201,128 as the annual cost of additional transactions ($0.28 per case times 718,316 cases). Finally, OSHA estimates that annual help desk support costs will increase by $25,000. This estimate is based on the annual help desk support costs under the current provisions.
As shown in the table below, the total costs of the proposed rule would be an estimated $4.3 million per year.
OSHA welcomes public comment on this analysis.
The main purpose of the proposed rule is to prevent worker injuries and illnesses through the collection and use of timely, establishment-specific and case-specific injury and illness data. With the information obtained through this proposed rule, employers, employees, employee representatives, the government, and researchers will be better able to identify and mitigate workplace hazards and thereby prevent worker injuries and illnesses.
The proposed rule would support OSHA's statutory directive to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources” (29 U.S.C. 651(b)) “by providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem” (29 U.S.C. 651(b)(12)).
The importance of the proposed rule in preventing worker injuries and illnesses can be understood in the context of workplace safety and health in the United States today. The number of workers injured or made ill on the job remains unacceptably high. According to the SOII, each year employees experience 2.7 million recordable non-fatal injuries and illnesses at work,
The proposed requirement would help OSHA encourage employers to prevent worker injuries and illnesses by greatly expanding OSHA's access to the establishment-specific, case-specific information employers are already required to record under part 1904. The proposed provisions requiring regular electronic submission of case-specific injury and illness data would allow OSHA to obtain a much larger data set of more timely, establishment-specific information about injuries and illnesses in the workplace. This information would help OSHA use its enforcement and compliance assistance resources more effectively by enabling OSHA to identify the workplaces where workers are at greatest risk. For example, OSHA could send hazard-specific educational materials to employers who reported cases related to those hazards. In addition, as discussed above, OSHA would be able to use the information to identify emerging hazards, support an agency response, and reach out to employers whose workplaces might include those hazards.
The proposed collection would provide establishment-specific, case-specific injury and illness data for analyses that are not currently possible. For example, OSHA could analyze the case-specific data collected under this system to answer the following questions:
1. Within a given industry, what are the characteristics of recorded injuries or illnesses related to specific hazards (for example, fall from ladder or heat)?
2. Within a given industry, what are the relationships between an establishment's hazard-specific/case-specific injury and illness data and data from other agencies or departments, such as the Wage and Hour Division, the Environmental Protection Agency, or the Equal Employment Opportunities Commission?
3. What are the changes in hazard-specific injuries or illnesses in a particular industry over time?
Furthermore, access to establishment-specific, case-specific injury and illness data will enable OSHA to improve its evaluations of the effectiveness of its enforcement and compliance assistance activities. Having these data will enable OSHA to conduct rigorous evaluations of different types of programs, initiatives, and interventions in different industries and geographic areas, enabling the agency to become more effective and efficient. For example, OSHA would be able to compare the incidence and characteristics of heat-related illnesses before and after promulgation of a regulation on heat injury and illness prevention in outdoor and indoor work settings, thereby allowing the agency to evaluate the implementation and effectiveness of the regulation.
OSHA's collection and publication of establishment-specific, case-specific injury and illness data would also encourage employers with 100 or more employees to prevent injuries and illnesses among their employees, because
• Employers would prefer to support their reputations as good places to work at or do business with;
• Employers in a given high-hazard industry would be able to compare their
• Employees in establishments with 100 or more employees would be able to access the case-specific injury and illness information without having to request the information from their employers; this, in turn, would allow the employees in these establishments to better identify hazards within their own workplace and to take actions to have the hazards abated.
• Prospective employees would have access to data about specific hazards of particular concern, such as lead or trench collapses, allowing them to make a more informed decision about a future place of employment; this, in turn, would encourage employers to abate these hazards because potential employees, especially the ones whose skills are most in demand, might be reluctant to work at establishments that did not abate these hazards.
• Potential investors and the public would also have access to information about an establishment's experience with specific hazards, allowing them to preferentially invest in or patronize businesses that have successfully abated the hazards common in a given industry; this, in turn, would encourage employers to abate the hazards in order to attract investors and/or customers.
Finally, disclosure of and access to establishment-specific, case-specific injury and illness data have the potential to improve research on the distribution and determinants of workplace hazards, and therefore to prevent workplace injuries and illnesses from occurring by abating those hazards. Using data collected under the proposed rule, researchers might identify previously unrecognized patterns of injuries and illnesses across establishments where workers are exposed to similar hazards. Such research would be especially useful in identifying hazards that result in a small number of injuries or illnesses in each establishment but a large number overall, due to a wide distribution of those hazards in a particular area, industry, or establishment type. Data made available under this proposed rule could also allow researchers to identify patterns of hazard-specific injuries or illnesses that are masked by the aggregation of injury/illness data in the SOII.
The availability of case-specific, establishment-specific injury and illness data would also be of great use to county, state and territorial health departments and other public institutions charged with injury and illness surveillance. In particular, aggregation of case-specific, establishment-specific injury and illness reports and rates from similar establishments would facilitate identification of newly-emerging hazards that would not easily be identified without linkage to specific industries or occupations. There are currently no comparable data sets available, and these public health surveillance programs must primarily rely on reporting of cases seen by medical practitioners, any one of whom would rarely see enough cases to identify an occupational etiology.
Workplace safety and health professionals might use data published under this proposed rule to identify establishments whose injury/illness records suggest that the establishments would benefit from their services to abate particular hazards or sets of hazards. In general, online access to this large database of establishment-specific, case-specific injury and illness information would support the development of innovative ideas for improving workplace safety and health, and would better the ability of everyone with a stake in workplace safety and health to participate in improving occupational safety and health.
Furthermore, because the data would be publicly available, industries, trade associations, unions, and other groups representing employers and workers would be able to evaluate the effectiveness of privately-initiated hazard-abatement initiatives that affect groups of establishments. In addition, linking these data with data residing in other administrative data sets would enable researchers to conduct rigorous studies that will increase our understanding of injury/illness causation, prevention, and consequences.
Public access to these data would enable developers of software applications to develop tools that facilitate use of these data by employers, workers, researchers, consumers and others. Examples of this in other areas include apps for finding and comparing nursing homes, creating thematic maps of data from the American Community Survey, and obtaining real-time information on stream levels or bus/subway arrivals.
The database resulting from this proposed rule would enable the collection and publication of case-specific, establishment-specific data without having to work under the restrictions imposed by the Confidential Information Protection and Statistical Efficiency Act (CIPSEA) to protect information acquired for statistical purposes under a pledge of confidentiality. It would also provide data on injuries and illnesses that are not currently available from any source, including the BLS SOII. Specifically, under this collection, there would be case-specific data for injuries and illnesses that do not involve days away from work. The BLS case and demographic data is limited to cases involving days away from work or cases involving job transfer or restricted work activity.
OSHA preliminarily concludes that the proposed rule will be economically feasible. For establishments with 100 or more employees in the industries designated in proposed appendix B, the average additional cost of submitting information from the OSHA Form 300 and 301 will be $81 per year. These costs will not affect the economic viability of these establishments.
1. Appendix A (industries where establishments with 20 or more employees are required to submit information from the OSHA Form 300A) is based on 2011–2013 injury rates from the SOII. OSHA could update appendix A to reflect the 2017–2019 injury rates from the SOII. This would result in the addition of one industry (NAICS 4831 (Deep sea, coastal, and great lakes water transportation)) and the removal of 13 industries, as follows:
OSHA is proposing not to modify appendix A because it took several years for the regulated community to understand which industries were and were not required to submit information. Misunderstandings result
2. OSHA could regularly update the list of designated industries in proposed appendix B (industries where establishments with 100 or more employees must submit information from the Form 300 and 301 as well as the 300A)—for example, every 6 years, to align with the PRA approval periods. In the 2016 final rule, OSHA agreed with the commenters who stated that the list of designated industries [appendix A, in this case] should not be updated each year. OSHA believed that moving industries in and out of the appendix each year would be confusing. OSHA also believed that keeping the same industries in the appendix each year would increase the stability of the system and reduce uncertainty for employers. Accordingly, OSHA did not, as part of that rulemaking, include a requirement to annually or periodically adjust the list of designated industries to reflect more recent BLS injury and illness data. OSHA committed that any such revision to the list of industries in the future would require additional notice and comment rulemaking. However, OSHA again welcomes public comment on this alternative for this rulemaking.
The part of the proposed rule requiring submission of Form 300 and 301 information from establishments with 100 or more employees in designated industries will affect some small entities, according to the definition of small entity used by the Small Business Administration (SBA). In some sectors, such as construction, where SBA's definition only allows relatively smaller firms, there are unlikely to be many firms with 100 or more employees that meet SBA small-business definitions. In other sectors, such as manufacturing, many SBA-defined small businesses will be subject to this rule. Thus, this part of the proposed rule will affect a small percentage of all small entities.
However, because some small firms will be affected, especially in manufacturing, OSHA has examined the impacts on small businesses of the costs of this rule. OSHA's procedures for assessing the significance of proposed rules on small businesses suggest that if costs are greater than 1 percent of revenues or 5 percent of profits for the average firm, then OSHA conducts an additional assessment. To meet this level of significance at an estimated annual average cost of $81.13 per affected establishment per year, annual revenues for an establishment with 100 or more employees would have to be less than $8,113, and annual profits would have to be less than $1,623. According to the 2017 Economic Census,
As a result of these considerations, per section 605 of the Regulatory Flexibility Act, OSHA certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. Thus, OSHA has not prepared an initial regulatory flexibility analysis. OSHA is interested in comments on this certification.
OSHA is proposing to amend its occupational injury and illness recordkeeping regulation, 29 CFR 1904.41, which contains information collections that are subject to review by OMB under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
OSHA prepared and submitted an ICR to OMB proposing to revise certain information collection requirements currently contained in the paperwork package in accordance with 44 U.S.C. 3507(d). The agency solicits comments on the revision to the information collection requirements and the reduction in estimated burden hours associated with these requirements, including comments on the following items:
• Whether the collection of information are necessary for the proper performance of the agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and cost) of the collection of information, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the compliance burden on employers, for example, by using automated or other technological techniques for collecting and transmitting information.
As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the following paragraphs provide information about this ICR.
3.
First, OSHA will no longer require electronic submission of Form 300A information from establishments with 250 or more employees in industries that are routinely required to keep part 1904 injury and illness records but are not in appendix A.
Second, OSHA will newly require all establishments that have 100 or more employees and are in certain designated industries to electronically submit information from the OSHA Form 300 and 301 to OSHA or OSHA's designee. This is in addition to the current requirement for these establishments to electronically submit information from the OSHA Form 300A. Each establishment subject to this provision will require time to familiarize themselves with the reporting website.
Third, OSHA will require establishments that are required to electronically report information from their injury and illness records to OSHA under part 1904, to include their company name as part of the submission. No additional paperwork burden is associated with the provision.
In addition, Docket exhibit OSHA–2021–006–0004 shows an example of an expanded interface to collect case-specific data. Screen shots of this interface can also be viewed on OSHA's website at
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Members of the public may comment on the paperwork requirements in this proposed regulation by sending their comments to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor, OSHA Regulation Identifier Number (RIN) (1218–AD40), by email:
OSHA encourages commenters also to submit their comments on these paperwork requirements to the rulemaking docket (OSHA–2021–0006), along with their comments on other parts of the proposed regulation. For instructions on submitting these comments to the docket, see the sections of this
To access the docket to read or download comments and other materials related to this paperwork determination, including the complete Information Collection Request (ICR), use the procedures described under the section of this document titled
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
OSHA reviewed this proposed rule in accordance with Executive Order 13132 (64 FR 43255 (Aug. 4, 1999)), regarding federalism. Because this rulemaking involves a “regulation” issued under sections 8 and 24 of the OSH Act (29 U.S.C. 657, 673), and not an “occupational safety and health standard” issued under section 6 of the OSH Act (29 U.S.C. 655), the rule will not preempt state law (see 29 U.S.C. 667(a)). The effect of the proposed rule on states is discussed in section VIII. State Plans.
For the purposes of section 18 of the OSH Act (29 U.S.C. 667) and the requirements of 29 CFR 1904.37, 1902.3(j), 1902.7, and 1956.10(i), within 6 months after publication of the final OSHA rule, State Plans must promulgate occupational injury and illness recording and reporting requirements that are substantially identical to those in 29 CFR part 1904 “Recording and Reporting Occupational Injuries and Illnesses.” State Plans must have the same requirements as Federal OSHA for determining which injuries and illnesses are recordable and how they are recorded (29 CFR 1904.37(b)(1)). All other part 1904 injury and illness recording and reporting requirements (for example, industry exemptions, reporting of fatalities and hospitalizations, record retention, or employee involvement) that are promulgated by State Plans may be more stringent than, or supplemental to, the Federal requirements, but, because of the unique nature of the national recordkeeping program, states must consult with OSHA and obtain approval of such additional or more stringent reporting and recording requirements to ensure that they will not interfere with uniform reporting objectives (29 CFR 1904.37(b)(2)).
There are 28 State Plans. The states and territories that cover private sector employers are Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands have OSHA-approved State Plans that apply to state and local government employees only.
OSHA reviewed this proposed rule in accordance with Executive Order 13175 (65 FR 67249) and determined that it would not have “tribal implications” as defined in that order. The proposed rule would not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
Because this rulemaking involves a regulation rather than a standard, it is governed by the notice and comment requirements in the Administrative Procedure Act (APA) (5 U.S.C. 553) rather than section 6 of the OSH Act (29 U.S.C. 655) and 29 CFR part 1911 (both of which only apply to “promulgating, modifying or revoking occupational safety or health standards” (29 CFR 1911.1)). Therefore, the OSH Act requirement to hold an informal public hearing (29 U.S.C. 655(b)(3)) on a proposed rule, when requested, does not apply to this rulemaking.
Section 553(b)(1) of the APA requires the agency to issue a “statement of the time, place, and nature of public rulemaking proceedings” (5 U.S.C. 553(b)(1)). The APA does not specify a minimum period for submitting comments.
OSHA invites comment on all aspects of the proposed rule. OSHA specifically encourages comment on the questions raised in the issues and questions subsection. Interested persons must submit comments by May 31, 2022. The agency will carefully review and evaluate all comments, information, and data, as well as all other information in the rulemaking record, to determine how to proceed. When submitting comments, persons must follow the procedures specified above in the sections titled
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 sections 8 and 24 of the Occupational Safety and Health Act (29 U.S.C. 657, 673), section 553 of the Administrative Procedure Act (5 U.S.C. 553), and Secretary of Labor's Order No. 08–2020 (85 FR 58393, Sept. 18, 2020).
Health statistics, Occupational safety and health, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, OSHA proposes to amend part 1904 of chapter XVII of title 29 as follows:
29 U.S.C. 657, 673, 5 U.S.C. 553, and Secretary of Labor's Order No. 08–2020 (85 FR 58393, Sept. 18, 2020) or 1–2012 (77 FR 3912, Jan. 25, 2012), as applicable.
The revisions and additions read as follows:
(a) * * *
(1)
(2)
(b) * * *
(1)
(ii)
(9)
(i) Log of Work-Related Injuries and Illnesses (OSHA Form 300): Employee name (column B).
(ii) Injury and Illness Incident Report (OSHA Form 301): Employee name (field 1), employee address (field 2), name of physician or other health care professional (field 6), facility name and address if treatment was given away from the worksite (field 7).
(10)
(c)
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Final rule.
This final rule amends the occupant protection Federal motor vehicle safety standards (FMVSSs) to account for future vehicles that do not have the traditional manual controls associated with a human driver because they are equipped with Automated Driving Systems (ADS). This final rule makes clear that, despite their innovative designs, vehicles with ADS technology must continue to provide the same high levels of occupant protection that current passenger vehicles provide. The occupant protection standards are currently written for traditionally designed vehicles and use terms such as “driver's seat” and “steering wheel,” that are not meaningful to vehicle designs that, for example, lack a steering wheel or other driver controls. This final rule updates the standards in a manner that clarifies existing terminology while avoiding unnecessary terminology, and, in doing so, resolves ambiguities in applying the standards to ADS-equipped vehicles without traditional manual controls. In addition, this final rule amends the standards in a manner that maintains the existing regulatory text whenever possible, to make clear that this rule maintains the level of crash protection currently provided occupants in more traditionally designed vehicles. This final rule is limited to the crashworthiness standards to provide a unified set of regulatory text applicable to vehicles with and without ADS functionality.
If you wish to petition for reconsideration of this rule, you should refer in your petition to the docket number of this document and submit your petition to: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, West Building, Washington, DC 20590.
For non-legal issues, you may contact Mr. Louis Molino, Office of Crashworthiness Standards, Telephone: 202–366–1740, Facsimile: 202–493–2739. For legal issues, you may contact Ms. Sara R. Bennett, Telephone: 202–366–7304 or Mr. Daniel Koblenz, Telephone: 202–366–5329, Office of Chief Counsel. Address: National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.
NHTSA has been evaluating its Federal Motor Vehicle Safety Standards (FMVSSs) to identify where concepts or terminology used in the standards do not account for the designs that the agency expects, and industry confirms, could accompany certain vehicles equipped with Automated Driving Systems (ADSs).
This prior work resulted in the agency's March 30, 2020, notice of proposed rulemaking (NPRM) underlying this final rule.
In the proposal, NHTSA proposed to amend the existing FMVSSs in a way that maintains the occupant protection performance currently required by the 200-Series FMVSSs while amending the wording that has or will become obsolete as applied to new designs, and to clarify for manufacturers developing ADS-equipped vehicles the application of a particular FMVSS to their vehicle. The NPRM also ensured these revisions accounted for dual-mode ADS-equipped vehicles (ADS-equipped vehicles that also have a conventional driving mode), as defined by SAE International (SAE).
NHTSA received 45 comments on the NPRM.
The agency acknowledges that uncertainty continues to exist around the development and potential deployment of ADS-equipped vehicles. Nevertheless, NHTSA believes it is appropriate to finalize this action at this time in anticipation of emerging ADS vehicle designs that NHTSA has seen in prototype form. The current designs generally involve forward-facing row seating
The differences between the NPRM and the final rule are generally minor and are fully explained in the relevant sections in this document. Some of the more substantive changes in this final rule are as follows.
• NHTSA believes that children should not occupy the “driver's” position when the vehicle is operating in ADS mode and steering controls are present, given that the driver's seating position has not been designed to protect children in a crash. For example, the required limit on the rearward displacement of the steering column and forcefulness with which the air bag deploys have been optimized for adults and could pose a safety risk to children. The NPRM proposed that ADS vehicles must
• Proposed regulatory text would have changed the front row seat compartmentalization occupant protection requirements for large school buses (gross vehicle weight rating over 4,536 kg (10,000 lb.)) in ways not intended by NHTSA. Such text is not adopted by this final rule.
• NHTSA has modified FMVSS No. 208,
• This final rule modifies the application section of FMVSS Nos. 212,
• NHTSA has decided not to move forward at this time with changing the FMVSS No. 226,
Minor differences between the NPRM and this final rule are discussed in the appropriate sections in this preamble. Some of these differences include:
• Moving the definition of “seat outline” from FMVSS No. 226 to § 571.3,
• Slightly revising the term used to describe occupant-less vehicles, to refer to at least “one person” rather than referring to “a designated seating position,” (see Section V.a of this preamble); and
• In FMVSS No. 208, correcting a missed revision indicating there can be multiple front seat passengers (S19.2.2(e)) (see Section VI.f of this preamble), and adopting a wording change to clarify the air bag suppression
As was the case for the NPRM, to illustrate the precise changes that are being made within the context of the full regulatory text, we are providing in the docket for this rulemaking a document that contains the full regulatory text of each modified standard included in this final rule. The text is color coded in the following manner; blue bold underline (text added by the NPRM), red strikeout (text deleted by the NPRM), green bold underline (text added by the final rule), orange strikeout (text deleted by the final rule). (The information is provided for illustration purposes for the convenience of readers and does not change the amendments provided in the amendatory text of this final rule.)
In the NPRM, NHTSA expressed certain “guiding principles” for this rulemaking, which continue to be relevant in this final rule. First, the amended FMVSS requirements in this final rule are intended to maintain the level of crashworthiness performance in vehicles with and without ADS functionality, including ADS-equipped vehicles that also have a conventional driving mode (dual-mode ADS vehicles). The level of performance required by the amended FMVSSs is just as appropriate for ADS-vehicles as it is for non-ADS vehicles in protecting the public against unreasonable risk of death or injury in a crash.
This final rule is purposefully limited in scope based on the bounds listed below.
1. This final rule only applies to ADS-equipped vehicles that have seating configurations similar to non-ADS vehicles,
2. This final rule addresses ADS-equipped vehicles designed exclusively to carry property (“occupant-less vehicles”) by amending the application of existing crashworthiness requirements for these vehicles, as appropriate. This final rule does not address potential vehicle-to-vehicle compatibility issues related to occupant-less vehicles, as the existing standards do not test for this issue.
3. With one exception, this final rule refrains from amending requirements relating to telltales and warnings, as that area has implications beyond the 200-Series standards and is a subject of continuing NHTSA research. The exception to this is the air bag suppression telltale, which we believe is reasonable to address now. This is described further in section VI.b of this preamble.
This rule will eliminate the need for ADS-equipped -vehicle manufacturers to equip vehicles with redundant manual driving controls in vehicles that do not have manual driving capabilities, to comply with FMVSS. In turn, the cost impacts of this rule will be driven predominantly by the per-vehicle costs savings to each vehicle that would no longer need certain manual controls and the number of vehicles produced each year that will be produced without those controls. The Agency has reliable information on the former category, given that we generally know the current costs of this equipment, but can only estimate the broader effects. Thus, NHTSA calculated ranges of estimates of cost impacts using a variety of logical assumptions. NHTSA calculated the impact of the final rule on costs by analyzing production cost savings arising from forgoing the installation of manual steering controls. These cost savings are partially offset by incremental costs associated with augmenting safety equipment in the left front seating position to make that position equivalent to the right front seating position.
NHTSA estimates that this rule would save approximately $995 per vehicle, as explained in greater detail in the RIA. NHTSA has conducted an analysis that shows how these cost savings would look if these types of vehicles entered the fleet to at least some degree. The results of this estimate show the present value of the final rule's estimated year-2050 savings to ADS–DV manufacturers and consumers, based on the assumption that there will be approximately 5.8 million affected vehicles, at a three-percent discount rate equal to $2.5 billion. At a seven-percent discount rate, the estimated year-2050 savings has a present value equal to approximately $0.9 billion, as presented in Table 1:
These estimates represent an upper bound, in which ADS–DVs do not compete with dual-mode ADS-equipped vehicles (
As a sensitivity analysis, NHTSA also considered an alternative case, in which ADS–DV sales in 2050 are reduced by 30 percent relative to the baseline, with the change in sales representing sales of
There are no other quantified benefits associated with this final rule. NHTSA acknowledges that this final rule may impact safety and fuel consumption and would likely generate benefits associated with incremental producer and consumer surplus beyond the production cost savings quantified above. This final rule may also generate benefits that could lead to increased safety, reductions in administrative burden, and reductions in manufacturer uncertainty, though these benefits are also unquantified.
The final rule is assumed to have no effect on the per-mile risk of travel in ADS–DVs, as it does not revise, remove, or establish anything associated with their safety performance. That is, the removal of manual steering controls is not assumed to offer any direct safety benefit or detriment for travel in ADS–DVs. However, it is feasible that changes in ADS–DV demand associated with the final rule (
The final rule could affect per-vehicle fuel consumption by changing the mass of ADS–DVs. NHTSA expects ADS–DV mass to either decrease (due to the removal of currently required equipment) slightly or remain essentially unchanged (due to the addition of automated steering components that offset the mass savings of the removed equipment) under the final rule. NHTSA acknowledges that, in principle, ADS–DV mass could increase (if vehicle seating configurations and amenities are changed sufficiently when exploiting the reduction in design constraints when removing manual steering controls) under the final rule. In any event, current corporate average fuel economy (CAFE) requirements are based on a vehicle's “footprint,” and thus any change in a vehicles mass will not affect a manufacturer's obligations under that program. Finally, as stated in the NPRM, NHTSA has not attempted to address the revisions that may be necessary to provide regulatory certainty for manufacturers that wish to self-certify ADS-equipped vehicles with unconventional seating arrangements.
The final rule would lead to a reduction in the number of standards from which manufacturers of ADS–DVs would have to seek exemptions. The reduction in exemption requests would be associated with a reduction in administrative costs for both manufacturers and NHTSA. NHTSA does not have sufficient information to establish a specific estimate of administrative cost savings. However, the cost savings would be expected to be small relative to the production cost savings associated with the rule.
A less tangible, but still important, expected impact of the final rule would be a reduction in uncertainty for manufacturers of ADS-equipped vehicles. The final rule provides clarity to manufacturers on constraints to developing FMVSS-compliant ADS-equipped vehicles. In turn, developmental paths for ADS-equipped vehicles could be implemented with greater precision and efficiency. The reduction in uncertainty could reduce not only the costs associated with manufacturing ADS-equipped vehicles, but also the time it would take to bring these vehicles to the market. An accelerated development timeline would be a benefit both to manufacturers and consumers.
On March 30, 2020, NHTSA issued an NPRM that proposed modifications to certain terms and other regulatory text in the 200-Series FMVSSs to account for ADS-equipped vehicles and certain interior designs that are expected to be present in these vehicles, including the lack of driving controls.
NHTSA's proposal sought to account for certain vehicle designs expected to accompany ADS-equipped vehicles in a manner that minimized textual additions and modifications to the 200-Series FMVSSs. The proposal discussed existing terms used in the standards that, through their use, made uncertain how regulatory text applies to vehicle designs that did not incorporate such terms. The proposal discussed existing terms that, by virtue of new vehicle designs, could be misunderstood, and defined them to clarify their meaning for ADS-equipped vehicles. The NPRM proposed a few new terms and definitions and proposed relocating other terms and definitions. The NPRM proposed to modify regulatory text to address situations where there may be no driver seat, but multiple outboard passenger seats. The agency proposed to consider any left outboard seat that does not have immediate access to traditional manual controls (“manually operated driving controls”) as a “passenger seat” and mirror the test procedures and requirements from the right side.
FMVSS No. 208,
The NPRM proposed to streamline the 200-Series FMVSSs so that requirements would not apply when the ADS-configured vehicle posed no safety need for the requirement. For example, the proposal took the position that, when there is not a steering wheel or steering column in a motor vehicle, FMVSS Nos. 203,
In response to the NPRM, NHTSA received 45 comments from vehicle and equipment manufacturers and ADS developers, industry associations, consumer advocates, advocates for persons with disabilities, States, insurance organizations, a university, an oil independence advocacy group, and members of the general public. Generally, most commenters supported the proposal, the revision of terms and use of definitional and textual changes to achieve the goals of the NPRM, and the agency's approach to minimize the complexity of the changes to the FMVSSs.
Approximately 25 commenters across all commenter types agreed that there is a need for the proposal, and, of these, approximately 17 commenters stated they agreed with the general approach. For example, General Motors (GM) commented that it supports the approach used in the NPRM and that “when finalized into a final rule, [it] will provide needed regulatory certainty for certification, reduce certification costs and minimize (but not completely eliminate) the need for future NHTSA interpretation or exemption requests related to ADS-equipped vehicles.” Waymo stated that the proposal would not reduce any protections for automated vehicles without manual controls and strongly supported the limitations in scope of the NPRM “to crashworthiness standards to conventional occupant seating arrangements.” The Alliance for Automotive Innovation (Alliance) stated that the rulemaking will work towards “maintaining motor vehicle safety” and “reduce the need to rely on the administratively complex and time-consuming FMVSS exemption process.”
Several commenters, though, questioned the need for the rulemaking action. The Center for Auto Safety (CAS) argued that a better allocation of limited government resources would be to focus on the “nearer-term technology improvements with immediate impact on the safety of occupants of conventional vehicles, pedestrians, and other vulnerable road users.” CAS stated that such an approach was more appropriate because “fully autonomous driving system-equipped vehicles [. . .] do not exist at this time.” CAS also asserted that NHTSA should not permit traditional manual controls to be removed from vehicles “until at least equivalent safety [of ADS-equipped vehicles] is proven.” CAS stated that such controls “might be deployable only as needed but are an absolute necessity for the many conceivable foreseen and unforeseen safety-critical situations that ADS-equipped vehicles will encounter.” The National Safety Council (NSC) stated that “shifting focus from tried-and-true vehicle standards is the wrong approach and evaluating the removal of those standards is premature at this time. As most ADS vehicle designs that might benefit from a revision of FMVSS standards are still on the drawing boards and unforeseen issues are certain to arise, eliminating current standards at this point is hasty.” NSC argued that NHTSA should redirect resources and prioritize requiring advanced driver assistance systems (ADAS) and other technologies in vehicles. Consumer Reports (CR) also “question[ed] the present focus of the agency on `removal of regulatory barriers' rather than on developing and implementing standards for proven safety technologies,” though CR also stated that it “appreciate[s] the Agency's targeted approach on this topic” and that the narrow scope of the NPRM “is appropriate.” The Insurance Institute for Highway Safety (IIHS) expressed concern that “the current Notice of Proposed Rulemaking (NPRM) creates a path for deploying into the market ADS-controlled vehicles without regulations that establish the ground rules for the safe behavior of ADS,” Though it also stated that “modifications proposed by NHTSA likely will be helpful to the entities developing automated driving systems (ADS) and the vehicles that will be controlled by ADS” and that the “changes answer some questions about how the occupants of ADS-controlled vehicles should be protected in the event of a crash.”
NHTSA is sensitive to concerns raised regarding prioritizing rulemakings and other activities that emphasize other technologies, such as advanced driver assistance systems (ADAS), instead of focusing on vehicles that remain in development. However, in the case of this rulemaking, the agency focused appropriate resources to address a narrow question. Further, NHTSA has
We also note that, in addition to this action, we have commenced rulemaking and other action on ADAS technologies. In the Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions, NHTSA announced two rulemakings to require emergency braking performance for heavy and light vehicles and to require pedestrian automatic emergency braking performance in light vehicles.
The purpose of the National Traffic and Motor Vehicle Safety Act (Safety Act), which NHTSA, by delegation, is tasked with administering, is to reduce traffic crashes and their resulting deaths and injuries, through carrying out research and establishing FMVSS.
Although NHTSA understands concerns that this final rule is premature given the current state of ADS-equipped vehicle development, the agency has received many requests from industry for information to assist them in determining how existing FMVSSs apply to ADS-equipped vehicles developed without traditional manual controls (
There also continues to be progress toward development of ADS-equipped vehicles. NHTSA knows of dozens of testing and development activities taking place in more than 40 States and the District of Columbia, many of which involve ADS-equipped vehicles that lack manually operated driving controls.
When NHTSA promulgated most of the current FMVSSs, the agency did not consider the sorts of vehicle designs that would be possible if a vehicle could operate without human intervention. Today, an increasing number of companies are developing technologies to make that idea a reality. NHTSA is issuing this final rule to amend terminology, definitions, and other nomenclature found in the relevant FMVSS that inadvertently and unnecessarily impede the unconventional vehicle designs described by manufacturers.
NHTSA identified the narrow scope of the NPRM clearly and has retained that scope for this final rule. Although the agency is sympathetic to many of the suggestions from CAS, CR, NSC and IIHS that NHTSA should focus on other vehicle safety issues and technologies, the agency believes it remains appropriate to finalize today's action on the narrow grounds identified in the NPRM, while continuing its other research and ongoing rulemaking actions on the issues identified by those commenters, including those related to ADS performance and ADAS technologies. Issues related to agency allocation of resources are also outside the scope of this final rule.
NHTSA also disagrees with the IIHS assertion that this final rule alone creates a path for ADS deployment. NHTSA's existing FMVSSs do not prevent the deployment of ADS in vehicles configured like traditional vehicles (
This final rule is substantially similar to the NPRM, with some alterations resulting from consideration of the comments. A summary of the substantive differences between the NPRM and final rule was provided in Section I of this preamble.
This final rule preamble is organized by critical subject matter. First, the rule addresses subjects that affect all 200-Series FMVSSs, such as changes to the
Second, this final rule achieves an objective of the agency with regards to “occupant-less vehicles,” by tailoring the 200-Series FMVSSs to exclude vehicles that are intended not to have human occupants. Occupant-less vehicles are designed for the transportation of property, not people, and have no DSPs. The agency has determined that the original safety need of the 200-Series FMVSSs no longer exists when there are no occupants to protect. A more fulsome discussion of this topic is provided in section V of this preamble.
Third, this final rule preamble discusses amendments to terminology used in certain FMVSSs, and focuses on FMVSS No. 208 as a critical subject, as many of the performance requirements of this standard were written with reference to the driver's and passenger's seating positions. This final rule discusses changes to substantive requirements of the standard resulting from those revisions to terminology, such as the treatment of advanced air bags and advanced air bag suppression telltales in ADS-equipped vehicles, lockability requirements, and changes to FMVSS No. 208's seat belt requirements for medium-sized buses and large school buses following the removal of the term “driver.”
Fourth, after the FMVSS No. 208 discussion, this final rule discusses amendments to other FMVSSs.
Lastly, the final rule discusses the effective date and cost impacts of the rule.
In the NPRM, NHTSA proposed to define, modify, or relocate existing terms and proposed new terms both to clarify application of the 200-Series FMVSSs to ADS-equipped vehicles and to facilitate the implementation of other proposed regulatory changes. However, NHTSA did not propose to amend the definition of “driver” in 49 CFR 571.3 to include ADS, and it did so intentionally. NHTSA cited four primary reasons for this decision. First, NHTSA believed it would not be appropriate to consider changes to such a fundamental and ubiquitous concept (“driver”) in a rulemaking that focused solely on the 200-Series without completing the additional research necessary to address implications for those other FMVSSs. Second, the regulatory changes NHTSA proposed in the NPRM did not necessitate examination of the issue of “what is a driver.” Third, NHTSA determined that revisiting the definition of driver would best be done in a different context, perhaps if the agency undertakes defining the ADS itself. Finally, keeping the current definition of driver was consistent with the input NHTSA received through the initial phase of a research project under which the FMVSSs were reviewed to identify potential approaches for addressing barriers.
Notwithstanding NHTSA's statements above, NHTSA received several comments suggesting amendments to the driver definition.
The agency proposed several changes to terms and definitions to implement the goals of the rulemaking. These definitions were proposed to be located or were already located in part 571.3, “Definitions.” Table 2, below, summarizes the NPRM's proposal for the reader.
In proposing these definitions, NHTSA acknowledged that vehicle designs are changing in response to technological innovation. Given that the agency is already seeing ADS-equipped vehicles being designed to operate in a “driverless” mode at all times,
The NPRM proposed to accomplish this regulatory scheme by modifying the text of the affected standards so that the front outboard passenger seat performance requirements and test procedures would apply to all front outboard seating positions for these vehicles. For most standards, the NPRM proposed to accomplish this by slight textual changes that would enable the performance requirements and test procedures that currently apply to the right front passenger seat to be “mirrored” for the left side of the vehicle. If the ADS-equipped vehicle retained a driver's seat, the NPRM proposed keeping performance requirements and test procedures for the driver's seat, when it exists, effectively unchanged. These proposed changes effectively turn occupant protection requirements for the driver's seat into “if-equipped” requirement, meaning that when a vehicle does not have a driver's seat, all front outboard seating positions must meet the current front outboard
Commenters generally supported NHTSA's proposed changes to the terms and definitions. Some commenters provided suggestions and minor modifications to the proposals. This final rule maintains the proposed definitions and changes to terminology,
The NPRM proposed to define
This definition incorporated another proposed term,
Many of the comments related to these definitions focused on “unconventional” driving controls. The Center for Auto Safety (CAS) argued that the definition of “driver's designated seating position” should be written to exclude non-conventional controls such as joysticks, computers, tablet computers or wireless remote controls, and that reference should be made to controls that are “permanently attached to the vehicle in a fixed location.” In contrast, Tesla argued that the definition should consider situations where, for example, “the manual controls may be removable, or where they may still be present, but are `locked' or rendered inoperative when the ADS is in control of the driving task, or where the vehicle may be operated remotely by portable steering controls within the vehicle (
NHTSA has considered the comments but is not revising the two proposed definitions. The agency concludes that CAS's suggested changes would add ambiguity to the definition of the driver designated seating position. The commenter's suggestion to add “conventional” to the definition raises a question about the meaning of this term. Similarly, we believe that making the recommended change to refer to permanently attached controls in a fixed location may cause confusion with respect to stowable controls that may be installed in “dual-mode” vehicles.
NHTSA does not agree with Tesla that it is necessary at this time that the definition for manually operated driving controls account for the use of tablets or cell phones to control the vehicle. The new definition is meant to encompass traditional driving controls, not future controls that have not yet been developed. We also note that this rulemaking does not address joystick-type designs that are intended to be the only manual driving control or driving controls that have no fixed position at a particular seating location. Since this issue raises crash avoidance and crashworthiness safety concerns that are beyond the scope of this rulemaking action, we will not address the matter in this final rule.
Tesla argued that only one of the terms “steering control system” and “manually operated driving controls” may be necessary, not both. NHTSA disagrees and believes having both terms allows for a more consistent regulatory text and less disruption from the existing text structure. Tesla claimed that the NPRM did not address the situation where the driving controls may still be present but are “locked” or “inoperative.” The NPRM explicitly considered inoperative controls that remain in position.
The Alliance stated there is a lack of clarity with respect to stowed manual controls. The commenter suggests the term “stowed” could mean a range of positions. The commenter points to the preamble statement that research may be needed into the “transition of traditional manual controls in dual-mode ADS equipped vehicles.”
To be clear, issues arising from the physical act of stowing manual controls is beyond the scope of this rulemaking. We believe the existing standards clearly provide for occupant protection when the controls are stowed, creating a passenger DSP. As for the meaning of the term “stowed,” it is the past tense of “stow,” which has the plain language meaning of “pack or store away.” In the 200-Series standards, it is a term that is already used in relation to air bags, seat belts, and sun visors. We believe that a stowed manually operated driving control will be self-evident. Stowed controls could have multiple potential stowed positions and configurations, but not positioned such that they can be used by the driver.
The NPRM proposed to define “
GM suggested slightly revising the last sentence in a manner that clarifies the provision about stowed controls. NHTSA agrees in part with GM's suggestion, and has decided in this final rule to change the last sentence to state:
As used in this part, “passenger seating position” includes what was a driver's designated seating position prior to stowing of the manually operated driving controls.”
The NPRM proposed to change the term “steering wheel” to “steering control” in consideration of steering controls that may not be circular, such as those shaped more like an airplane yoke control. At every occurrence of the term “steering wheel,” the NPRM substituted the term “steering control.” These terms were meant to be synonymous as is evident by the use of
Comments were generally supportive, although some commenters raised concerns about issues tangential to the proposal. The California State Transportation Agency
The final rule will adopt the proposed change. With respect to SRN's concerns, the change in terminology does not newly enable manufacturers to equip vehicles with non-circular steering controls, since such controls were never prohibited. All of the standards that address the impact protection of steering controls remain in place. We also disagree with Tesla's contention that the use of the term “rim” limits the shape of the steering control to a round object. We believe “rim” can reasonably be interpreted as “outer edge.” Thus, various shapes are possible. We decline to make any change to the term “steering control rim” in this final rule.
NHTSA proposed to clarify that the terms “outboard seating position” and “outboard seat” have the same meaning as used in the existing definition of “outboard designated seating position.” Our analysis of the regulatory text of the crashworthiness FMVSSs, determined these three terms have the same meaning. Therefore, to clarify this point, we proposed added language specifying that “outboard seating position” and “outboard seat” have the same meaning as “outboard designated seating position.”
There were no adverse comments made to this proposal and the final rule will adopt the proposed change.
The NPRM proposed to relocate the definition of “row,” which is currently located in FMVSS No. 226, to Part 571.3. The term was proposed to be used in multiple standards (FMVSS Nos. 201, 206 and 208). Moving it to part 571.3 would eliminate the need to insert a reference to its current location.
There were no adverse comments related to moving the definition of “row.” However, Alliance, Zoox and GM recommended that the definition of “outline” similarly be moved to part 571.3 because the definition of “row” uses this term. The final rule will make this change.
The NPRM proposed to define “driver air bag,” “driver dummy.” These are new definitions, but the terms already appear many times in the FMVSSs. This is also the case for “passenger seating position” and “driver's designate seating position,” which we discussed extensively above. However, there was previously no strong need to define these terms. NHTSA proposed to define them now because they help to clarify the application of the FMVSSs to ADS-equipped vehicles while maintaining their application to traditional vehicles and minimizing textual disruption.
There were no adverse comments made to this proposal and the final rule will adopt the proposed change.
FMVSS Nos. 201, 206, 208, 214, 216a, 225 and 226 contain terms or definitions that reference the driver's seat or steering controls to provide a spatial reference for where equipment in the vehicle must be installed, or test equipment (such as test dummies) placed in a compliance test. The NPRM proposed various changes addressing the situation where there is no driver's seat, a lone passenger seat, or no steering control to provide a spatial reference frame. In some instances, the agency proposed using the front row or the front outboard seating position as a reference rather than the driver's seat. In some cases, the “left” or “right” side of the vehicle was proposed to be used rather than “driver's side” or “passenger side.”
The NPRM proposed using the front row, or the seating reference point of a seat in the front row, as a spatial reference rather than the driver's seat. Such changes were proposed for FMVSS Nos. 201, 206, 208 and 225, for buses.
FMVSS No. 225, “Child restraint anchorage systems,” currently defines “shuttle bus” as “a bus with only one row of forward-facing seating positions rearward of the
The Alliance supported the change to the definition of “shuttle bus,” but requested that this change be made for all vehicles, not just vehicles without driving controls, using the same language. In contrast, the State of California (CalSTA) commented that the “proposed change may result in practical design and configuration changes to shuttle buses. Further research into how these changes will impact occupant safety on shuttle buses, if at all, is needed and suggests that it may be premature to address at this time.” The Alliance further addressed provisions for rear-facing front row seating.
NHTSA is not implementing the Alliance's suggestion to apply the definitional change to non-ADS-equipped vehicles and is not accounting for rear-facing front row seating. This decision is in line with the agency's intent to focus this rulemaking narrowly to address unique designs that might be implicated by ADSs. This rulemaking is NHTSA's first step toward modernizing the FMVSSs to account for these new vehicle designs. No doubt there will be other steps, as the technologies mature, and suggestions for further amendments will be considered at those appropriate times.
NHTSA disagrees with CalSTA since the changes will have no effect on vehicles with driver's seats. Further, it is our expectation that using a front row seat as a reference rather than a driver's seat will have little to no effect on the reference point location.
For the reasons above and explained in the NPRM, this final rule adopts the changes that refer to the front row instead of to the driver's seat.
Currently FMVSS Nos. 208 and 214 refer to the driver's DSP when
All comments were generally in favor of using the seating reference point of outboard seats as the spatial reference for the lateral placement of test dummies when there is no driver's DSP.
The Center for Auto Safety (CAS) agreed with the proposed change to FMVSS No. 208 on the use of the seating reference point as the spatial reference for bench seats when there is no driver's seat. However, CAS stated: “[T]his proposal should not pertain to vehicles that include fixed or deployable human-accessible primary or backup (potentially deployable on demand or need) controls.” NHTSA understands this comment as conveying CAS's belief there should not be any reduction in the safety of the driver as a result of this final rule—a belief with which the agency agrees. The agency notes that the proposed regulatory text was purposefully drafted in a manner that would not affect the protection currently provided by vehicles with manually operated driving controls,
IIHS stated that the proposed method to position passenger side dummies in the absence of a “driver's” seat “seems sensible.” However, the commenter requested that the agency “ensure that this change will not result in unrealistic dummy positioning for all relevant dummy sizes before making its proposed change.” NHTSA has assessed how this final rule would impact dummy placement during compliance testing and concluded that the dummy positioning procedures are feasible for all the test dummies used in the standards, and dummy positioning would remain realistic for all tests. The Alliance supported the proposed language and suggested that such a method should be used with vehicles with unconventional steering controls. This suggestion is beyond the scope of this rulemaking but will be considered for future actions.
FMVSS Nos. 206, 208, 216a and 226 refer to “driver's side” and “passenger side” in describing substantive requirements and compliance test procedures. The NPRM proposed to substitute “left side” for driver's side and “right side” for passenger side.
Some commenters were in favor of the approach NHTSA took in the NPRM. The Alliance supported the proposed language substituting “left side” for “driver's side.” CAS indicated that this approach is sufficient to provide for testing under FMVSS No. 208. CalSTA supported the proposal, stating that this approach does not result in any “loss in meaning.” The commenter also agreed with similar proposed changes in FMVSS Nos. 206, 214 and 216a.
A few commenters did not support this change. In contrast to its comment about FMVSS No. 208, CAS stated that for FMVSS No. 214, optional manual controls normally associated with the driver's position could be located on the right side of the vehicle. CAS also contended that, for FMVSS No. 226, the proposed changes to “left front door sill” from “driver's door sill” could have implications for vehicles that may only have doors or seating on the right side of the vehicle. ZF stated that the question of whether this option would result in the same performance outcome is one that needs additional study because it is unclear to them that “the occupant will be in the exact same position.”
The agency is adopting its proposal to change references to the driver's and passenger side of the vehicle to the left and right side of the vehicle. With respect to CAS's concern about FMVSS No. 214, whether manual controls associated with a defined driver position are on the left or right side of the vehicle has no bearing on the application of the standard's requirements and test procedures to a vehicle. The standard's side impact protection requirements currently and will continue to apply equally to the left and right sides of the vehicle. Further, the spatial reference changes proposed for FMVSS No. 214, S10.2 were nearly identical to the changes CAS supported in FMVSS No. 208. Regarding FMVSS No. 226, the agency is not aware of any vehicles under 10,000 lb. GVWR without a door on the left side of the vehicle. Regardless, placement of doors and seating on the right side of the vehicle does not affect the application of the requirements and test procedures of FMVSS No. 226. Finally, in response to ZF, we believe that it is reasonable to assume at this time that occupants would remain in the same position as currently contemplated by the standard, and thus, the same performance outcome could be expected by modifying the current language to “left side” and “right side.” NHTSA does not believe that additional research is necessary at this time since this rule only changes the term used to describe the seating position (“driver's” seat) and not the performance requirements or placement of the seat itself. Finally, as mentioned previously, the scope of this rule includes conventional seating, not unconventional seating arrangements.
FMVSS No. 201 S5.1.1(d) excludes from S5.1 “areas outboard of any point of tangency on the instrument panel of a 165 mm diameter head form tangent to and inboard of a vertical longitudinal plane tangent to the inboard edge of the steering wheel.” The NPRM proposed to amend S5.1.1(d) so that an area of the instrument panel excluded from S5.1 (the impact procedure) would no longer be excluded if the steering control were not present,
CAS argued that the standard should apply to ADS-equipped vehicles that include optional manual controls that are either fixed or deployable if they are associated with a defined position. The Alliance believed additional clarity for S5.1.1(d) is needed for dual-mode vehicles with stowed controls, suggesting that NHTSA add the phrase “if the steering control is present or, in the case of dual-mode vehicles, fully deployed in manual driving mode” to the beginning of S5.1.1(d).
In response to CAS, the proposed amendment was intended to address vehicles without “steering wheels” and where the steering control is not present. The rule change was to ensure the protection provided by the current passenger side of the instrument panel (right side) is provided to the left side (former driver's side). The revised standard will provide the same level of protection as the current standard when a steering control system is present.
Relatedly, NHTSA declines to make the Alliance's suggested clarification because it is unnecessary. Steering controls are defined as a type of “manually operated driving control.” Manually operated driving controls are “positioned such that they can be used by an occupant.” Thus, by definition, these controls are not stowed controls. The suggestion also raises additional questions related to how “dual-mode vehicles,” “fully deployed,” and “manual driving mode” should be defined.
The NPRM stated that for dual-mode vehicles with the capability of stowing driving controls, NHTSA would require
Many commenters supported NHTSA's approach to dual-mode vehicles. IIHS noted that the agency's statement in the preamble
Among commenters addressing the issue of certification of dual-mode vehicles, there was agreement on the need to certify in both modes. In response to IIHS, we have reviewed the regulatory text to assure the text is not worded in terms of “expectations” but is clear in terms of requirements.
With respect to the Tesla comment about seeing a conflict in the agency statements that a seating position is not a driver's DSP, NHTSA believes these statements are not in conflict and clearly proceed from the terms used in the regulatory text (driver, steering control system, manually operated driving controls, driver's DSP, and passenger seating position). For example, the definition of “manually operated driving controls” makes no statement about the state of any ADS system. It simply states, among other things, that the controls are “positioned such that they can be used by an occupant.” While the steering controls might not be used, as would be the case of a dual-mode vehicle with the ADS engaged, the seating position where they are located and positioned for potential use, by definition, remains the driver's DSP.
NHTSA believes that no additional regulatory text changes are needed beyond that proposed in the NPRM to assure clarity with respect to certification of dual-mode vehicles. NHTSA notes that if a left front seat has both a driver configuration and a passenger configuration, the agency may choose either configuration for compliance testing, or test both configurations.
Many of the 200-Series FMVSSs incorporate a full vehicle crash test or other kind of dynamic vehicle test in the standard's compliance test. For some of these dynamic tests, a test condition applies such that the vehicle transmission is in neutral, and/or the parking brake applied. For vehicles without driver-accessible transmission shift selectors or parking brake mechanisms, NHTSA may not have readily available means to set the vehicle in neutral, activate a parking brake, or achieve other test conditions described in the compliance test.
NHTSA did not propose any regulatory text changes related to interfacing with ADS-equipped vehicles on pre-test transmission and brake status. The agency believed such changes were unnecessary for the purposes of this notice, as the important factor for the 200-Series FMVSSs was whether the transmission was in the proper gear and the pre-test brake activated; the way that pre-test state was achieved was of no consequence to performance of the crash test. It was envisioned that manufacturers would provide the know-how for the agency to achieve the necessary transmission and brake status when NHTSA conducts its compliance tests. However, comments were requested on this issue.
Commenters were generally in agreement with the agency's approach. The Center for Auto Safety (CAS) supported the agency's views on this matter. The Alliance agreed that manufacturers could and would work with the agency to achieve the necessary transmission and parking brake status. Waymo stated that it “agree[s] with the line of thinking that the important element is whether the transmission is in the proper gear and whether the pre-test brake is activated—not the manner in which that state is achieved.”
NHTSA's view of how compliance tests would be conducted on vehicles without traditional transmission shift levers or parking brake mechanisms was supported by the commenters. The agency envisions compliance testing will be conducted with the above framework in mind. Tesla may be raising a point that certain test conditions may not be necessarily relevant or appropriate for some vehicles, if, for example, the vehicle parking brake status is not appropriate. While NHTSA agrees that FMVSS test conditions should be relevant and appropriate for the vehicle and for the safety need addressed by the standard at issue, the agency is not currently aware of a situation where the parking brake status is an inappropriate test condition or would be inappropriate for an ADS-equipped vehicle. Consistent with the NPRM, the final rule does not change any regulatory text related to interfacing with ADS-equipped vehicles on pre-test transmission and brake status.
Currently, the 200-Series “vehicle” standards apply to passenger cars, multipurpose passenger vehicles (MPVs), trucks, buses, and school buses. These vehicle types, as they are defined in 49 CFR 571.3, are all, by definition, passenger-carrying vehicles, except for “trucks.” (A driver of a truck is considered an occupant but is not
Because occupant-less vehicles qualify as trucks,
There are some standards that are applicable to trucks that the NPRM did not propose to amend because they only apply if a DSP were present. One such example is FMVSS No. 202a,
Most commenters that addressed this issue were supportive of the proposal, but a few had reservations about how the approach could affect crash compatibility and other safety matters. A number of commenters focused on the applicability of FMVSS Nos. 203 and 204, FMVSS No. 205,
Most commenters believed that no safety need exists requiring occupant protection standards for occupant-less vehicles, and that the 200-series standards were not relevant for such vehicles. The American Trucking Associations (ATA) specifically supported changes to standards that apply to trucks with a GVWR greater than 4,536 kg (10,000 lb.). Uber argued that “equipment that is designed to protect occupants in traditional vehicles will do nothing but create unnecessary potential safety hazards in the event of a crash or if that equipment malfunctions.” Nuro stated that applying occupant protection standards to occupant-less vehicles could degrade safety by adding weight and rigidity, which may increase “the risk to occupants” of other vehicles. A number of other commenters suggested that NHTSA overlooked several other 200-Series FMVSSs that should also be amended to exclude occupant-less trucks from their applicability, namely FMVSS Nos. 212 and 219.
Commenters expressing concern about the proposal included the State of California (CalSTA) regarding possible degradation to the safety of vulnerable road users, such as pedestrians and bicyclists, if occupant-less vehicle were excluded from FMVSS No. 205. The Automotive Safety Council (ASC) raised the potential for crash compatibility concerns stemming from the potential loss of energy absorption in a crash involving an occupant-less vehicle.
While NHTSA believes the non-applicability of certain standards was implicit in the proposal, the agency has considered the comments and is adopting amendments to provide clarity. Several commenters (including the Alliance, the Consumer Technology Association (CTA), Nuro, and, Zoox) suggested that additional clarity is needed with respect to the 200-Series FMVSSs sections the NPRM did not propose to modify. As discussed later below, NHTSA agrees to amend FMVSS Nos. 212 and 219 to clarify non-applicability to occupant-less vehicles.
The Center for Auto Safety argued that a truck with an optional or deployable control system should not be excluded from FMVSS Nos. 201, 205 and 206. NHTSA would like to be clear that this subject pertains to occupant-less vehicles that are specifically designed
Nuro suggested three possible ways to limit the applicability of the FMVSSs to occupant-less vehicles: (1) A blanket exclusion in section 571.7; (2) a preamble statement; or (3) a change to all application sections. First, a blanket change to section 571.7 or to change “all” application sections would be overly broad and exceed the scope of this notice, which focuses exclusively on the 200-series standards. Second, a statement in the preamble would not provide appropriate transparency and clarity. In other words, the applicability of the standards to the vehicles in question would not be apparent from the actual text of the standards. Thus, to assure a full and careful consideration of the applicability of the FMVSSs to subject vehicles and avoid unintended consequences, NHTSA has decided to evaluate each standard and determine applicability on a standard-by-standard basis. In some cases, no change was needed because the non-applicability of the standard to occupant-less vehicles is indirect (
In the NPRM, NHTSA proposed to exclude occupant-less trucks from the FMVSS occupant protection requirements, tentatively concluding that, “the safety need that supports the crashworthiness requirement of FMVSS No. 208 for the protection of vehicle occupants does not exist for occupant-less trucks.” While this final rule affirms this conclusion, the agency notes that the language proposed to accomplish this exclusion applies standards to “trucks with at least one designated seating position.” Commenters such as the National Disability Rights Network, in different contexts covered in Section VI.f of this preamble, raised the prospect of vehicles with ADS that do not include a DSP, but accommodate people with certain physical disabilities (
CalSTA posited that vulnerable road users, such as pedestrians and bicyclists, might be placed at risk if occupant-less vehicles are excluded from meeting FMVSS No. 205. The State suggested that “[i]f the glazing materials standard is removed, a standard providing a commensurate level of safety for vulnerable road users should be implemented.”
Given that one of NHTSA's guiding principles for this rulemaking was maintaining safety levels provided by existing FMVSS, the agency carefully considered this issue. The agency first analyzed the intended purpose of FMVSS No. 205. The focus of the Society of Automotive Engineers (SAE) standard, SAE J673-Automotive Safety Glasses—on which FMVSS No. 205 is based—was to benefit the occupants of motor vehicles. The purpose of Standard No. 205 as promulgated, and as specified today, references vehicle occupants and makes no mention to persons struck outside the vehicle. Nonetheless, the commenter raises the possibility that FMVSS No. 205 has had an unintended benefit for vulnerable road users, and the agency sought to understand any unintended consequences of this rulemaking. Accordingly, NHTSA undertook a thorough search, but found no crash data or research studies that could verify unintended benefits for pedestrians, cyclists or other persons resulting from FMVSS No. 205 glazing.
The effect of glazing in pedestrian and other road users' collisions with motor vehicles is complex, as the crash may manifest potential tradeoffs between various design aspects of glazing and glazing retention. The center of the windshield, if it breaks on impact, can be a relatively forgiving area with respect to the impact forces/deceleration of the struck person. However, in contrast to the middle of the windshield, the area of windshield attachment, particularly at the A-pillars, may be relatively hazardous to a person striking it as the pillars are stiff structural elements. For a windshield to protect occupants, it must be adequately retained in a crash. FMVSS No. 212 specifies windshield mounting requirements that must be met, for the benefit of occupants, when subjected to a 48 km/h (30 mph) barrier crash test. In order to retain the windshield, the perimeter mounting must be sufficiently stiff. It is unclear whether or to what extent the crashworthiness test requirements of FMVSS No. 205 contribute to, or are offset by, these forgiving yet stiff aspects of a windshield. That is, even if the glazing is forgiving in the center once it breaks, the windshield mounting must be stiff enough to meet FMVSS No. 212. Any overall benefit to pedestrians and cyclists from compliance with FMVSS No. 205 is uncertain.
It bears noting that FMVSS No. 205 is an “if equipped” standard. Accordingly, the standard only requires FMVSS No. 205 glazing if vehicles have glazing. The extent to which occupant-less vehicles would have glazing is unknown at this time.
In its comment, Nuro argued that, if manufacturers of occupant-less vehicles were not required to meet occupant protection requirements, they could concentrate on protection of other road users.
After consideration of the information above, NHTSA has decided that information is not available to substantiate the view that there would be lost safety benefits to pedestrians and other road users by excluding occupant-less vehicles from FMVSS No. 205. However, NHTSA will monitor this issue. In view of Nuro's statement above, NHTSA believes that the amendment adopted by this final rule may open up avenues for potential development of more pedestrian-friendly designs for occupant-less vehicles, though the agency is not relying on this belief in making the decision to exclude these vehicles, as these vehicles would not be required to make these changes.
As to more general matters, both NADA and Ford asserted that the change to FMVSS No. 205 would not address the standard in its entirety, and that transmissibility/visibility aspects of the standard would need to be revisited in the future. In response, NHTSA notes that the NPRM proposed, and this final rule adopts, revisions to FMVSS No. 205 that apply the standard only to vehicles with occupants.
In its comment to the NPRM, Nuro stated that, just as the NPRM proposed changes to FMVSS No. 205, conforming changes should be made to FMVSS No. 500,
Nuro noted that part 565 requires that the VIN be visible through “the vehicle glazing” by an observer “whose eye-point is located outside the vehicle adjacent to the left windshield pillar.” This final rule does not amend part 565, as the matter is beyond the scope of the NPRM. However, the agency understands the issue and will consider addressing it in a future action.
The Automotive Safety Council (ASC) supported limiting the crash protection requirements of FMVSS No. 208 to
In its comment, Nuro mentioned that the preamble of the NPRM indicated NHTSA is considering crash compatibility research and possible rulemaking for occupant-less vehicles. Nuro stated that crash compatibility should not be the agency's initial foray into drafting standards for these vehicles. Nuro argued there is no reason to believe that occupant-less vehicles should be less compatible than existing vehicles, but that “the opposite is true due to the lower mass and smaller size that can be achieved for vehicles that will not carry, and need not include protections for, humans.”
The NPRM did not include provisions related to potential vehicle-to-vehicle crash compatibility, and this final rule continues this approach. As stated in the NPRM, this is a complex issue that has not yet been adequately researched and we have no evidence that vehicle-to-vehicle crash compatibility might cause adverse safety consequences at this time, as occupant-less vehicles do not exist in the fleet in any significant number. However, NHTSA is engaged in research on this subject and will also monitor on-road deployments. In addition, NHTSA does not agree with Nuro's assertion that all future occupant-less vehicles will necessarily be small and light and thereby a safer collision partner because NHTSA's decision in this final rule is not limited by weight and thus will apply to any occupant-less vehicle. NHTSA notes that the American Trucking Associations' comment on this subject, as previously mentioned in the Comments subsection of section V. of this preamble, was especially supportive of changes made to standards applying to occupant-less trucks with a GVWR greater than 4,536 kg (10,000 lb.), thus indicating that there may be occupant-less vehicles that are much larger and heavier than Nuro's vehicles. Further, the fact that an occupant-less vehicle does not have to protect its own occupant does not mean that they will necessarily be designed to protect other road users more, as it is possible that manufacturers of occupant-less vehicles might tolerate increased risks to other road users in the interest of protecting their own cargo. Potential crash compatibility implications relating to occupant-less trucks is an area of interest for the agency and warrants further examination.
The NPRM requested comment on whether the agency had included all relevant FMVSSs that might need changes similar to those identified in the proposal. Many commenters suggested there was no safety need to apply FMVSS Nos. 212 and 219 to occupant-less vehicles, as there would be no occupants in the vehicles to protect with the countermeasures installed to meet these
NHTSA agrees that FMVSS No. 212 and 219 should also be amended to exclude occupant-less vehicles. It was an oversight by NHTSA not to have included those standards in the NPRM. The NPRM for this rulemaking action was broad and intended to include all crashworthiness (200-Series FMVSSs) standards. In the NPRM, NHTSA discussed whether there was a need to apply FMVSSs that serve primarily to protect vehicle occupants to occupant-less vehicles, and whether those FMVSSs had a continuing safety purpose for occupant-less vehicles. NHTSA requested comment on “whether additional changes are necessary or appropriate” to accomplish the goals of the NPRM.
As requested, commenters provided additional input, and the comments received on FMVSS Nos. 212 and 219, helped NHTSA assure the final rule would address a more complete set of relevant standards. Given that NHTSA proposed FMVSS No. 205,
Accordingly, NHTSA is amending FMVSS Nos. 212 and 219 in this final rule to exclude trucks that are not designed to carry at least one person (occupant-less vehicles).
Making appropriate amendments to FMVSS No. 208,
The NPRM discussed proposals for: Applying FMVSS No. 208's advanced air bag requirements to front outboard seats without manually operated driving controls (including to seats that had been considered a driver's seat); applying the standard's telltale requirements; applying requirements for front outboard seats to seats that are no longer “outboard”; and suppressing vehicle motion when a child restraint system is sensed in a seating position with manually operated steering controls. The NPRM also proposed amending FMVSS No. 208's bus requirements to account for buses equipped with ADS and that lack manually operated steering controls.
FMVSS No. 208 currently establishes crash protection requirements that are the same for the driver's designated seating position (DSP) as for the right front outboard seating position (commonly referred to as the front passenger seat). The vehicle's compliance with the requirements is assessed in a frontal crash test using adult-sized crash test dummies.
To minimize air bag risks to children and small-statured adults, however, FMVSS No. 208 also establishes “advanced air bag” requirements that, among other things, require the air bags at the right front DSP to either turn off automatically in the presence of detected young children, or deploy in a manner less likely to cause serious or fatal injury to child occupants. Manufacturers may also choose to combine these approaches. Vehicles that disable the passenger air bag utilize weight sensors and/or other means of detecting the presence of young children. To test detection capability, FMVSS No. 208 specifies that child dummies be placed in child restraint systems (child seats) that are, in turn, placed on the passenger seat. It also specifies “out-of-position” tests that are conducted with unrestrained child dummies sitting, kneeling, standing, or lying on the passenger seat. For manufacturers that design their passenger air bags to deploy in a low risk manner, the standard specifies that unbelted child dummies be placed against the instrument panel. The air bag is then deployed. The ability of driver air bags to deploy in a low risk manner is tested by placing the 5th percentile adult female dummy against the steering wheel and then deploying the air bag.
In the NPRM, NHTSA tentatively concluded that the most practical way to maintain occupant protection in ADS-equipped vehicles with no “manually operated driving controls” (and thus, with no driver's seat) would be to treat any seat that does not have immediate access to such controls as a passenger seat under the standard. Thus, all front outboard seats in such vehicles are front outboard passenger seats and would be required to meet FMVSS No. 208's performance requirements that currently apply to the right front outboard passenger seat. For a seat located in the left front outboard position, this would be done by mirroring the test procedures and requirements from the right side. Among other things, to maintain the level of safety currently afforded to right front outboard passengers under FMVSS No. 208, NHTSA proposed requiring that all front outboard “passenger seats” meet advanced air bag requirements.
Commenters were generally supportive of the proposed changes to FMVSS No. 208. Consumer Reports (CR) stated NHTSA should, “maintain the maximum protection under the standard in any modification. In the case of vehicles without manual controls, this means treating each front seat as a front outboard passenger seat and requiring all the protections required by that designation.”
Ford supported the proposal, but with a caveat that occupant protection requirements should not apply to an “occasional use seat” which is clearly marked.
Safe Ride News (SRN) supported the proposed changes but raised the lockability requirements of S7.1.1.5a of FMVSS No. 208. These requirements require vehicles to have a seat belt assembly with a lockable lap belt at each seating position to facilitate the secure attachment of child restraint systems. The standard currently excludes the driver's seating position from lockability requirements, since, in traditional vehicles, a child restraint would not be installed at the driver's seat. SRN suggested NHTSA remove the exception from lockability for seats without manually operated driving controls or with stow-able controls in the left front seat.
In response, NHTSA emphasizes that under this final rule, a left front DSP without manually operated driving controls is a passenger seat. Similarly, a left front DSP with stow-able controls will have a mode that makes it a passenger seat. In either case, the DSP would be required to have a lockable seat belt. In response to Ford, we would make clear that the requirements would apply if the seat in question meets the definition of a DSP. Part of the DSP definition allows the labeling of certain seats as “not designated for occupancy while the vehicle is in motion.” We believe this addresses Ford's concern, but the agency is not further expanding this provision. In the situation of a dual-mode vehicle whose controls are always in place,
CalSTA requested that NHTSA ensure that any changes in nomenclature relative to the terms “passenger seat” or “driver's seat” would not degrade occupant safety and requested research to confirm there is no unintended degradation of occupant safety.
In response, NHTSA emphasizes that the left front outboard passenger will be required to have the same protection as the right front outboard passenger DSP, which for adults are the same requirements that would apply to a driver's seat. The current occupant protection requirements have been in place for almost 30 years. The immense technical data and information NHTSA and the occupant safety community have acquired over this period indicate there is no difference in the FMVSS No. 208 protection afforded adult occupants by the left or right front seating position. The data and other information on advanced air bag safety protections also indicate there are no technical reasons why the protections provided by a seat in the right front outboard seating position could not be mirrored by a passenger seat on the left side. Additional research is not necessary to verify that protections afforded to one seating position would be sufficient for the other seating position, as identical designs could be applied to the opposite sides of a vehicle.
This final rule adopts the proposal's provisions relating to the left front seat when that DSP meets the definition of a passenger seating position. The final rule makes minor clarifying changes to the regulatory text in response to comments, which are discussed below. This final rule adopts the provisions of the NPRM that relate to advanced air bag requirements, telltale requirements (indicating air bag suppression for the left front outboard seating position), and other requirements, except as discussed below.
As discussed in the proposal, applying advanced air bag requirements to all front outboard seating positions maintains the current levels of safety for ADS-equipped vehicles without manually operated driving controls. Applying the requirements meets the need for safety because an occupant will receive the same crash protection whether they choose to sit in the left or right front outboard seat. In addition, an important benefit of advanced air bags over conventional air bags is the protection of out-of-position occupants, particularly children. In a traditional vehicle, the occupant in the driver's seat is typically an adult. In contrast, occupants of the left front outboard passenger seats in an ADS-equipped vehicle without manually operated driving controls could possibly be children, as there would be no driving control mechanism at any position that may deter occupancy of the seating position by a child. NHTSA tentatively
With regard to the static suppression requirement of FMVSS No. 208 S22.2 for the 3-year-old child dummy, GM and the Alliance asked that the regulatory text “clearly specify that suppression is tested only for the seating position where the child dummy is placed.” NHTSA agrees the clarification is warranted and has added language to S22.1 to make clear that the relevant air bag that is to be suppressed is the air bag associated with the designated seating position being assessed. NHTSA has made similar clarifications to the text of FMVSS No. 208 regarding tests with the 12-month-old (S20.2) and 6-year-old (S24.2) child dummies.
NADA commented that air bag switch installation should apply, “to the extent applicable and appropriate.” However, air bag on/off switch requirements comprise a topic beyond the scope of this rulemaking. Accordingly, NHTSA is not considering this suggestion in this rulemaking.
FMVSS No. 208 currently requires that vehicles display a telltale, visible to the front row occupants, which indicates whether the front outboard passenger seat air bag is suppressed. Given that this rulemaking may result in multiple front outboard passenger seats, NHTSA proposed amending this requirement to specify that a separate telltale would be required for each outboard front passenger seat based upon the belief that doing so would maintain the current level of safety provided by the standard. The NPRM proposed that the current telltale's substantive performance criteria would remain the same to provide occupants with the same level of information about the status of each pertinent air bag as provided by the current standard. Because the left front seat without manually operated controls would be a passenger seat, the NPRM proposed to require an additional telltale.
Commenters had differing views on this issue. The Alliance and GM requested that NHTSA consider a single telltale unit for both front outboard seating positions, so long as that telltale is visible from each seating position. The Center for Auto Safety (CAS) stated, “it is important for occupants to verify the operational capability of safety-critical equipment in vehicles they occupy, including telltales for suppression-based advanced air bag systems.” Safe Ride News (SRN) supported requiring seat-specific telltales. Various commenters had concerns or suggestions that are addressed below.
The final rule adopts the provisions of the NPRM, with a few modifications in response to comments received. The Alliance and GM requested allowing a single telltale for both front outboard seating positions. It is NHTSA's position that, while a single telltale unit that distinguishes both indicators would be acceptable, a single light indicating the suppression status of both air bag systems, but not distinguishing their individual state of suppression would not. Separate suppression telltales clarify which associated seating position is suppressed, allowing the corresponding passenger to respond to the information with appropriate action. Separate suppression telltales verify to the caregiver of children placed in seating positions that the corresponding air bag is suppressed and allow other users to determine whether the air bag corresponding to their seating position is properly functioning. Thus, this final rule requires the telltale to be clearly recognizable to a driver and any front outboard passenger with which seat each telltale is associated.
IIHS argued that the proposal's use of “any” in reference to seating position requirements from which telltales required by FMVSS Nos. 226 (S4.2.2) and 208 (S19.2.2(d)) must be visible, is ambiguous, and suggested that the final rule use the term “all.” The IIHS comment seems to interpret the proposal as seeking to require that the suppression telltale be visible from any DSP in the vehicle. This is incorrect. The proposal restricted visibility to the front outboard seats for the FMVSS No. 208 telltale. Accordingly, the final rule will retain the word “any” in FMVSS No. 208 S19.2.2(d). Comments specific to the FMVSS No. 226 telltale are addressed later in this document.
Safe Ride News commented that the location should be “on the dash in easy-to-see, logical juxtaposition to the seat for which it applies.” On the other hand, the Automotive Safety Council (ASC) believed that the location of the telltale should be chosen to provide information regardless of where an adult may be seated in the vehicle. As noted above in our response to IIHS, we decline to implement the suggestion that the suppression telltales be visible from all seating positions. While expanding telltale visibility requirements generally is worthy of discussion, it is beyond the scope of this rulemaking. As stated elsewhere in the proposal and this document, NHTSA plans to issue a separate notice that will focus on telltales and warnings for ADS-equipped vehicles. In the interim, this final rule will establish requirements that will allow front seat occupants in vehicles without manual controls to determine whether either outboard front seating position has a suppressed air bag.
Disability rights advocacy groups (National Disability Rights Network (NDRN), Disability Rights Education Fund (DREDF), and the Consortium for Citizens with Disabilities (CCD)) requested that NHTSA consider adding audible or haptic alerts to the visual alerts for suppression telltale information.
IEE expressed concern that ADS-equipped vehicles might have no seat belt warning system as required by FMVSS No. 208, S7.3 because they may have no driver's DSP. IEE recommended that NHTSA require a seat belt reminder system in ADS vehicles that provides audio-visual warnings for unbelted occupants. The requested revisions are
An “outboard seating position” is defined in 49 CFR 571.3 as “a designated seating position where a longitudinal vertical plane tangent to the outboard side of the seat cushion is less than 12 inches from the innermost point on the inside surface of the vehicle at a height between the design H-point and the shoulder reference point (as shown in fig. 1 of Federal Motor Vehicle Safety Standard No. 210) and longitudinally between the front and rear edges of the seat cushion.” FMVSS No. 208 requires, for most light vehicles (GVWR less than 4,536 kg (10,000 lb.)), each “outboard designated seating position,” including the driver's seat, to have a lap/shoulder (Type 2) seat belt assembly that conforms to FMVSS No. 209,
In the NPRM, NHTSA acknowledged that future vehicle designs might not have two front outboard seating positions. The agency sought to amend FMVSS No. 208 to be inclusive of and account for ADS-equipped vehicles (particularly those without driving controls) that might not have a front left outboard DSP or, for that matter, any outboard DSP, as those terms are defined in NHTSA's regulations. NHTSA envisioned that one or both of the outboard seating positions on a current vehicle could be moved toward the center of the vehicle and thus fall outside of the outboard seating position definition. NHTSA sought to amend FMVSS No. 208 to provide occupants of an ADS-equipped vehicle with fewer than two front outboard seating positions no degradation in the crash protection now required by the standard for vehicles that are not ADS vehicles. The agency requested comment on including in the final rule air bag (including out-of-position occupant protection) and lap/shoulder (Type 2) seat belt protection to these inboard seating positions if outboard positions were removed. We also requested comment on the implications of such designs upon the statutory obligation for frontal air bags.
Several entities, primarily consumer advocacy groups, commented in favor of providing Type 2 belts and air bags at all inboard seats. The Center for Auto Safety (CAS) stated that both lap/shoulder belts and air bags should be required for inboard seating positions in ADS-equipped vehicles. Safe Ride News (SRN) commented that the front center seating position in ADS and non-ADS vehicles “should no longer be allowed to be equipped with Type 1 (lap-only) belts, which are far less protective than Type 2 belts.” SRN noted that it believes this request is even more important since it expects it will be more likely that children would be seated in the front row in ADS-equipped vehicles, though did not provide any support for this expectation. IEE requested FMVSS No. 208 require advanced air bags at inboard seats. The Automotive Safety Council (ASC) stated that “automated vehicles may have increased usage/presence of a center seating position, possibly without accompanying outboard seating positions.” ASC argued that “it is reasonable” to apply the out-of-position advanced air bag requirements for all front designated seating positions. IIHS stated that all designated seating positions should receive “the same level of crash protection” in ADS-equipped vehicles, and that front row center positions should be required to have Type 2 belts and air bag protection.
Some commenters focused on the protection that should be afforded a single center seat. The Alliance commented that “[w]here there is only a single forward-facing front row center seat (and no other front row seating positions), current levels of FMVSS 208 crash performance, including advanced air bag performance criteria, if applicable, should be required for that position.” However, the commenter also stated, “there should not be a specific air bag installment requirement to meet this crash performance.” Ford expressed support for the final rule “to apply the current performance requirements for the passenger seat called out in FMVSS [No.] 208, to both outboard positions when there are no controls, or to the center seat when the outboard seating positions are absent.”
Several commenters requested additional research on the issue. Waymo stated “considerable technical research and a new proposed rule” may be needed to address the protection that should be offered to inboard front seats when there are no outboard seats. Waymo also stated that “[i]f such seating arrangements are in fact likely,” Waymo prefers that NHTSA finalize this rule and deal with this “novel” issue in a separate rulemaking. Tesla urged NHTSA first to conduct research on the appropriateness and type of equipment (especially for out-of-position) that is needed to protect an occupant in the non-outboard seating position, including,
In deciding how to respond in this final rule to the comments expressed on this topic, NHTSA considered its guiding principles for this rulemaking.
Applying these principles, NHTSA's decisions focus on protecting the public and minimizing any potential loss in crash protection provided by vehicles if outboard seats are removed in favor of inboard seats. Further, NHTSA primarily seeks to retain the protections from existing requirements in a manner that allows for innovators to develop certain alternative configurations that can accommodate vehicles with ADS. NHTSA has also made decisions considering the practicability of meeting requirements and the reasonableness of applying current FMVSS No. 208 requirements to inboard seat designs.
Taking these principles into account, NHTSA notes that passenger cars, multipurpose passenger vehicles, trucks and buses with a GVWR of less than 3,855 kg (8,500 lb.) and unloaded weight of 2,495 kg (5,500 lb.) are already required to have advanced air bag systems installed at the front outboard seating positions. Accordingly, the agency has decided to apply the FMVSS No. 208 protections now applying to the outboard seating positions to inboard seating positions, to the extent technically feasible. This final rule adopts a balanced path between the commenters that desire air bag and lap/shoulder belt protection at
To accomplish this, this final rule will implement the following (see Figure 1). First, FMVSS No. 208 currently protects two designated seating positions in the front row of seats with a “full” suite of occupant protection countermeasures: Type 2 (lap/shoulder belt system), and an advanced air bag system. Those protected seats are currently the outboard seating positions. To maintain FMVSS No. 208's protection of two seating positions in the front row—to the extent technically feasible—this final rule continues protecting two designated seating positions in the front row with the full suite of protective countermeasures (Type 2 belt and advanced air bag). Thus, where there is a single inboard seat and one or no outboard seats, the single inboard seat would be required to have lap/shoulder seat belts and advanced air bag protection in that single front row inboard seat, and any one remaining outboard seat will continue to offer the same protection as it does currently in vehicles with driving controls (the full suite of crash protection).
Second, NHTSA considered a front row with multiple inboard seats and one or no outboard seats. As discussed above, this final rule seeks to maintain protecting two designated seating positions in the front row with the full suite of protective countermeasures (Type 2 belt and advanced air bag). Thus, for this situation, the protection required by the vehicle depends on whether there is a remaining single outboard seat or not. If there is a remaining single outboard seat, that outboard DSP will be required to provide the full suite of protection (lap/shoulder seat belts and advanced air bag protection), and one of the inboard seats will be required to offer the same full suite. The manufacturer will have the discretion to determine which of the inboard seats will offer this protection. The other inboard seat (if any) would only require a lap belt (a lap/shoulder belt may be provided at the manufacturers' choice), as this is the requirement now specified for an inboard first row seat under FMVSS No. 208. Thus, the protection offered by this configuration is essentially the same as vehicles with driving controls and three front seats (
In the second case, it is possible there is no outboard seat, but multiple inboard seats. For this situation, only a single inboard seat will be required to provide the full suite of protection (lap/shoulder seat belts and advanced air bag protection). The other inboard seat will only be required to offer a lap/shoulder belt. While the agency would like to require the full suite of protections for two DSPs in accordance with our principles above, we are not requiring a full suite of protection for the second DSP because of potential safety risks posed by air bags operating in close proximity to each other (
To be clear, NHTSA does not believe any such research is needed for the situation where a single inboard passenger seat has frontal air bag protection, even with another non-air bag protected seat in close proximity. Neither does NHTSA believe that a separate rulemaking is necessary to provide FMVSS No. 208 protections to a single inboard seating position. This is because the technology required in that situation is used by the millions in vehicles today, with decades of experience (currently there are front outboard seating positions with Type 2 belts and air bags right next to a center seating position with a lap belt or Type 2 belt). Vehicle manufacturers may need to address the specifics of the vehicle interior geometry and crash pulse to develop an appropriate design, but the agency has no reason to believe that providing a full suite of protection to a single inboard seat will be more challenging than for an outboard seat.
The above specified regulatory changes have been implemented in S4.1.5.6 and S4.5.6.4 of FMVSS No. 208. The regulatory approach taken in these sections was to point to the test procedures as specified for front outboard designated seating positions and apply them to the inboard seats, as appropriate. We believe that, except as noted below for bench seat positioning, the procedures as written can be performed on inboard seats, without adaptations. The agency has made minor edits to S16.2.10 and S16.2.10.3 to clarify positioning of inboard seats, in the case where seat positioning cannot be independently controlled.
Finally, NHTSA carefully considered the Alliance comment on inboard seat protection suggesting that current levels of crash performance be provided, including advanced air bag performance criteria, but without a specific air bag installation requirement. We interpreted this to mean that any stipulation for “inflatable restraint” should be removed from S4.1.5.6.3, with all other provisions remaining. The agency is declining to make this change at this time. The text is clearer with the reference to “inflatable restraint” than without it. Also, there are questions of scope related to this request and NHTSA would like to consider further comments on the suggestion.
Because some ADS-equipped vehicles may be designed with a driver's seat (
Many comments discussed this aspect of the proposal, with a variety of approaches. In general, commenters on this topic acknowledged that a potential problem exists that should be addressed but differed in their approach to a solution and beliefs about the readiness for a regulatory solution. Many non-industry commenters agreed with the proposal, as did some suppliers and an ADS developer. However, a couple commenters raised concerns about the proposal. Additional details on these comments are provided below.
Many commenters, including Consumer Reports, Safe Ride News (SRN), Johns Hopkins University, IIHS, IEE, the Automotive Safety Council (ASC), and the Center for Auto Safety (CAS) supported NHTSA's proposal to require motion suppression if a child were detected in the driver's seat of an ADS-equipped vehicle. CAS stated that the vehicle should be immovable if any child were detected in the driver's seat
In contrast, a number of commenters expressed concerns about the proposal. The NDRN explained that “child protections that limit the vehicle's motion would have the unintended consequence of prohibiting access and discriminating against adult drivers of short stature.” This concern was also expressed by DREDF and CCS. NDRN stated that a vehicle's sensors would not know the difference between a child and an adult driver whose weight and height may be similar. The Alliance stated that “whenever a child can be placed in front of an air bag when the vehicle is in motion the appropriate advanced air bag requirements should apply at that seating position.” That said, the Alliance argued that “the issue of vehicle motion suppression does not fall within the category of a simple technical translation of current FMVSS [No.] 208 requirements,” but is an “operational topic” that NHTSA can and should address “on a separate track.” Waymo stated that it recognized the importance of protecting small children from air bag risks but had concerns about the proposed vehicle motion suppression approach. Waymo stated, “it may be technically feasible to address that risk by requiring the same advanced air bag protections in the driver's seat of dual-mode vehicles as those that are currently required in the right front outboard passenger seat. In fact, there may be other technical solutions that would obviate the need for the NPRM's proposal. . . . Waymo is confident that auto manufacturers can develop sound technical ways to address this issue.”
Ford stated that it “appreciates NHTSA's safety concerns for child seats mounted in the driver seat of a `Dual mode' AV when the ADS is active,” but sought an additional compliance option beyond motion suppression. Ford identified two risk categories for children in the driver's seat: Crash protections; and unintentional takeover of the driving task. Ford stated that the crash protection risk could be addressed by “[e]nsur[ing] the same level of crash protection for children of various ages in the driver seat position as provided today in the passenger outboard seating position,” while the risk of unintentional take-over could be addressed “by suppressing manual requests to the steering control in ADS mode when a child is detected in the driver seat.” GM asserted that motion suppression for dual-mode ADS-vehicles should not be the focus of the NPRM, but that it “is aligned with the need to address child occupant safety in dual-mode ADS-equipped vehicles and would support applying existing air bag suppression requirements (and/or low risk deployment) to accomplish this.”
NHTSA has decided not to adopt the proposal for motion suppression of the vehicle in this final rule. Additional information is needed to gain a fuller understanding of potential unintended consequences of the proposal, the potential safety problem related to interaction with driving controls, and available regulatory solutions before a final decision can be made. While the agency believes that FMVSS No. 208's air bag suppression test procedure could form the basis of a test procedure for a vehicle motion suppression regulatory option, such as that proposed in the NPRM,
While several commenters suggested potential alternative regulatory solutions, they are outside of the scope of this rulemaking, require research to determine their technical feasibility, or require further analysis to determine whether they would be consistent with the requirements of the Safety Act. Some suggested requiring the same advanced air bag protections in the driver's seat of dual-mode vehicles as those that are currently required in the right front outboard passenger seat. That approach does not address concerns with the effect the manually operated driving controls themselves could have on the children's crash protection. For instance, would an infant in a rear-facing child restraint in a seating position with a steering control system be adequately protected when the air bag is suppressed? Would a child in a forward-facing child restraint in a seating position with a steering control system be adequately protected when the air bag is suppressed or in a low risk deployment state? How should test procedures be developed to assess the crash protection provided to children in a driver's seating positions relative to the passenger position? While caregivers are taught to transport children in rear seating positions, to what extent would children be transported in ADS vehicles in seating positions that have manually operated driving controls? To finalize a rule in this area, the agency would like to answer these questions, and those answers require additional research.
NHTSA plans to initiate research into the possibility of alternative regulatory options that allow vehicle motion, but that also address the risk of children in a driver's seat. The agency is interested in the development of an analogous procedure to the child passenger low risk deployment tests, but for seats with manual controls. A test could be developed that assesses the injury risk from a deploying air bag on an out of position child. Another aspect of this research may attempt to discern whether the presence of the steering control (even with a suppressed or low risk deployment air bag) results in an unreasonable safety risk to an in-position child in the driver's seat compared to a child in a passenger seat.
While NHTSA has decided not to proceed with adopting the proposed requirement for vehicle motion suppression, we disagree with the assertion that this proposal was not appropriate for the rulemaking. While the rulemaking focused on translating the current FMVSS No. 208 requirements to account for ADS vehicles, the agency appropriately discerned what it believed to be a crash protection issue and a risk case that is a consequence of the vehicle design changes that may accompany vehicles equipped with ADS technology. After review of the comments, NHTSA has concluded that more information is needed to identify and understand the nature and extent of the potential safety problem and available regulatory alternatives.
FMVSS No. 208 establishes seat belt requirements for “medium-sized” buses
Many commenters (including the Alliance, Hyundai, Safe Kids, CAS, CalSTA, the Automotive Safety Council (ASC), Safe Ride News (SRN)) supported NHTSA's proposal. ASC also believed the proposed text should apply regardless of whether they are ADS or non-ADS vehicles and suggested there should be a seat belt warning for each position. SRN believed that the occupant protection formerly provided for an adult driver should be available for a supervisory adult or adults in school buses with ADS.
The final rule adopts the proposed changes to the seat belts required for the front seats of medium sized buses (GVWR or more than 4,536 kg (10,000 lb), but not greater than 11,793 (26,000 lb)) without driver's DSPs, but will not proceed with the changes for large school buses (GVWR of more than 4,536 kg (10,000 lb)).
For large school buses described above, we have decided that more examination is necessary before finalizing a requirement. The FMVSS No. 222 compartmentalization requirements for passenger seats remain in place. We believe any changes to the compartmentalization requirement of FMVSS No. 222 for front row seats of novel ADS-equipped school buses require a more fulsome discussion before moving forward.
NHTSA is finalizing its proposal for medium size buses, other than school buses, to require the same occupant protection at the front seat of an ADS as would currently be met by the driver's seat. However, modifying existing FMVSSs to require seat belt warnings for each bus seat would be outside the scope of this rulemaking.
CAS submitted that school buses should not be included in this rulemaking due to the unique role a human driver has in interacting with and overseeing the student occupants. The commenter is concerned about a rulemaking that has the effect of encouraging the development of school buses with ADS, because school buses rely on the human driver for more tasks such as “safety during ingress and egress, for discipline while underway, and for emergency evacuation in a variety of life-endangering situations.” They argue that “any proposed rule on occupant protection for driverless school buses should be withdrawn unless and until all safety aspects of such operation are considered.”
In response, NHTSA believes the CAS request that this rulemaking action exclude any changes that affect school buses is unwarranted. The final rule simply updates terms in the standards to make them technology-neutral to account for ADS-equipped vehicles, particularly those without manual controls, while providing the same amount of occupant protection. NHTSA notes that Federal law does not prohibit installation of an ADS on a school bus, currently. CAS did not provide any particularized safety issues within the scope of this rulemaking that would justify NHTSA's not proceeding with amending the school bus FMVSSs. NHTSA does not regulate the use or operation of school buses, so even with this final rule, States or local school districts can continue to purchase only non-ADS school buses if they wish to do so, and existing operational and supervisory requirements on a State, local or school district level could apply as well.
NHTSA realized from some of the comments that editorial corrections should be made to some of the provisions of FMVSS No. 208.
Zoox believed that a change in S19.2.2(e) is needed for consistency throughout the regulatory text. NHTSA agrees with Zoox that S19.2.2(e) should be changed such that the reference to the “right front passenger” is changed to “any front outboard passenger.” The agency believes this is consistent with changes made throughout the FMVSSs to address the situation where there may be more than one front outboard passenger.
FMVSS No. 208, S4.2 defines, for use in that section, the term “vehicles manufactured for operation by persons with disabilities.” The purpose of this definition was to allow an exception to the type of seat belt required in the driver's seating position in S4.2.1.2(b), which is a superseded section of FMVSS No. 208. The National Disability Rights Network (NDRN) commented that “[l]anguage needs to be added to these provisions that takes into consideration the potential for wheelchair accessible ADS-equipped vehicles without manual controls or a driver's seat and reference to a front left outboard seat.”
In response, S4.2.1.2(b) has been superseded and the term “vehicles manufactured for operation by persons with disabilities” is no longer used anywhere in active portions of FMVSS No. 208, aside from the definition that is provided in S4.2. NHTSA interprets NDRN's comment as requesting that “vehicles manufactured for operation by persons with disabilities” be added in active portions of FMVSS No. 208, as had been included in superseded portions of the standard. Though such a request is outside the scope of this final rule and requires additional analysis, NHTSA may consider similar language in future rulemakings.
This section discusses comments received on proposed amendments to various FMVSSs.
NHTSA proposed modifying the application section (S2) of FMVSS Nos. 203 and 204 to state that the standards do not apply to vehicles without steering controls. The agency tentatively determined that the proposed changes
Several commenters supported the proposed wording change, and no commenter opposed. NHTSA is adopting the change. In their comments to the NPRM the American Trucking Association stated their belief that FMVSS No. 204 applied to heavy trucks. In response to this comment we would like to clarify that FMVSS No. 204 does not apply to trucks with a GVWR over 10,000 lb.
The Center for Auto Safety (CAS) discussed implications for vehicles with configurations that could change (
NHTSA proposed to modify a requirement that a vehicle have a driver's seat (FMVSS No. 207, S4.1), to specify instead that a driver's seat would be required only for vehicles with manually operated driving controls. By virtue of the new definition of driver's seat (“driver's designated seating position”) and “manually operated driving controls,” a driver's seat inherently has immediate access to such controls. Therefore, the proposed addition to S4.1 would clarify that a vehicle equipped with ADS, without traditional driving controls, need not have a driver's seat.
Most commenters responding to this issue (the California State Transportation Agency (CalSTA), GM, CAS) favored or were neutral on the proposal. GM noted that the NPRM's use of the term “manually operated driving control” as used in the requirement for a driver's seat in FMVSS No. 207 was incorrectly singular and instead should be plural. NHTSA agrees with this comment and has adopted the correction in the final rule.
Tesla asked NHTSA to reconsider this requirement, stating that, “in certain circumstances involving dual-mode vehicles, the driver's designated seating position may become a passenger's designated seating position (
NHTSA does not understand how the situation Tesla describes creates uncertainty about S4.1 certification, since the driver's seat requirement is predicated on the presence of driving controls. If the vehicle were dual-mode with stowable controls, the manufacturer would need to provide a seat so that when the controls are in place, the seat would be available. Although such a system would be unnecessary, a manufacturer could provide a system that stows the driver's seat when the controls are stowed.
Zoox commented that the first sentence of FMVSS No. 214, S12.2.1(c) is unnecessary. This section of the standard refers to the positioning of the arms of the test dummy. The NPRM proposed adding a sentence to assure that the specification would apply if the vehicle had multiple front seat passenger dummies. However, since the specification would apply to any dummy, the additional sentence is redundant. NHTSA agrees with Zoox's assessment and is deleting the unnecessary text.
The Alliance suggested that in S5.2(b), the term “occupant compartment” should be substituted for “passenger and driver compartment.” NHTSA did not propose changes to FMVSS No. 220 because the agency does not believe any are necessary.
We decline to make the requested change to FMVSS No. 220 because the agency continues to believe no changes are necessary. We note that a lack of a driver simply indicates that there is only a passenger compartment.
The agency stated in the preamble of the NPRM that it would not address telltales and warnings as they relate to ADS vehicles where there is no requirement for any occupant to be seated in what is currently considered the driver's DSP.
This final rule does not proceed with this proposal. Changes to the ejection mitigation readiness indicator in FMVSS No. 226 were not intended to be included in the scope of this rulemaking. The agency will take the comments received on this issue into consideration when developing its next actions related to telltales and indicators for ADS-equipped vehicles.
FMVSS No. 226 excludes “modified roof vehicles” from the standard (S2). The existing FMVSS No. 226 definition of “modified roof” (in S3) uses the term “driver's compartment.” NHTSA proposed to make a simple substitution of “occupant compartment” to replace “driver's compartment.” We noted that this change would affect the applicability of the standard to all vehicles. However, we expected that it would not have any substantive effect on non-ADS vehicles,
This final rule adopts the proposed change. Only CalSTA commented on this aspect of the proposal, and they did so in agreement with the change. CalSTA asserted that this modification will increase occupant safety. NHTSA does not have information demonstrating that this change affects the level of protection provided by current requirements, since the modification does not expand applicability.
This final rule is effective 180 days after date of publication in the
A Final Regulatory Impact Analysis (FRIA) can be found in the docket for this final rule. A summary of the FRIA findings is provided below. The cost impacts of this rule will depend on the per-vehicle costs savings to each vehicle that would no longer need certain manual controls, times the number of vehicles produced each year that will be produced without those controls. The Agency has reliable information on the former category, given that we generally know the current costs of this equipment, but can only estimate the broader effects. Thus, NHTSA calculated the impact of the final rule on costs by analyzing production cost savings arising from forgoing the installation of manual steering controls. These cost savings are partially offset by incremental costs associated with augmenting safety equipment in the left front seating position to make that position equivalent to the right front seating position,
Monetized estimated per-vehicle cost impacts (2018 dollars) are presented by discount rate in Table IX–1 below based on a scenario presented by the Energy Information Administration (EIA),
The ranges of estimates were identified within an uncertainty analysis addressing uncertainty in the average level of cost savings that would be achieved by ADS–DV manufacturers. The uncertainty analysis centered on identifying plausible ranges of the per-vehicle cost savings, with corresponding assumptions regarding the distributions of values across each range (
Although attempting to project the number of vehicles that may benefit from these savings is, of course, highly uncertain, NHTSA has conducted an analysis that shows how these cost savings would look if these types of vehicles became more present in the fleet, as explained in greater detail in the FRIA. NHTSA assumed that light-duty vehicle sales would follow the identical baseline path projected in the Corporate Average Fuel Economy (CAFE) Model
The estimated cost impacts above represent the subset of potential impacts that are quantifiable (albeit with considerable uncertainty) under the available information. NHTSA identified five unquantified benefit impacts associated with the final rule: impacts on fuel consumption, impacts on safety, incremental producer and consumer surplus, changes in administrative burden, and changes in manufacturer uncertainty. The final rule could affect per-vehicle fuel consumption by changing the mass of ADS–DVs. NHTSA expects ADS–DV mass to either decrease (due to the removal of currently required equipment) slightly or remain essentially unchanged (due to the addition of automated steering components that offset the mass savings of the removed equipment) under the final rule. NHTSA acknowledges that, in principle, ADS–DV mass could increase (if vehicle seating configurations and amenities are changed sufficiently when exploiting the reduction in design constraints when removing manual steering controls) under the final rule. Conversely, ADS–DV net mass could decrease for cases where vehicles are used for travel without occupants (
In any event, current corporate average fuel economy (CAFE) requirements are based on a vehicle's “footprint,” and thus any change in a vehicles mass will not affect a manufacturer's obligations under that program. Finally, as stated in the NPRM, NHTSA has not attempted to address the revisions that may be necessary to provide regulatory certainty for manufacturers that wish to self-certify ADS-equipped vehicles with unconventional seating arrangements. The final rule is assumed to have no effect on the per-mile risk of travel in ADS–DVs, as it does not revise, remove, or establish anything associated with their safety performance. That is, the removal of manual steering controls is not assumed to offer any direct safety benefit or detriment for travel in ADS–DVs. However, it is feasible that changes in ADS–DV demand associated with the final rule (
NHTSA recognizes that incremental consumer and producer surplus under the final rule would accrue in addition to the production cost savings estimated in the preceding section. That is, by reconfiguring seating configurations and amenities to exploit the lack of manual steering controls, ADS–DV manufacturers would generate incremental consumer and producer surplus as consumers' willingness-to-pay increases. However, NHTSA does not have sufficient information available on the demand and supply of ADS–DVs and their substitutes to estimate the components of incremental consumer and producer surplus that are not captured within the estimates of production cost savings. Thus, the share of incremental consumer and producer surplus not comprised of the cost savings identified in the preceding section is an unquantified benefit.
The final rule would lead to a reduction in the number of standards from which manufacturers of ADS–DVs would have to seek exemptions. The reduction in exemption requests would be associated with a reduction in administrative costs for both manufacturers and NHTSA. NHTSA does not have sufficient information to establish a specific estimate of administrative cost savings. However, the cost savings would be expected to be small relative to the production cost savings associated with the rule.
A less tangible, but still important, expected impact of the final rule would be a reduction in uncertainty for manufacturers of ADS-equipped vehicles. The final rule provides clarity to manufacturers on constraints to developing FMVSS-compliant ADS-equipped vehicles. In turn, developmental paths for ADS-equipped vehicles could be implemented with greater precision and efficiency. The reduction in uncertainty could reduce not only the costs associated with manufacturing ADS-equipped vehicles, but also the time it would take to bring these vehicles to the market. An accelerated development timeline would be a benefit both to manufacturers and consumers.
NHTSA has considered the impacts of this rulemaking action under E.O. 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), E.O. 13563, “Improving Regulation and Regulatory Review,” and DOT regulatory requirements. This final rule is “significant” and was reviewed by OMB. This action is significant because it raises novel legal and policy issues surrounding the regulation of vehicles equipped with ADS and is the subject of much public interest and has anticipated annual economic impacts greater than $100 million. NHTSA has prepared a Final Regulatory Impact Analysis (FRIA) for this final rule, which can be found in the docket for this final rule. The cost savings of this final rule are described in the preamble and discussed in greater detail in the accompanying FRIA.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
I certify that this final rule will not have a significant economic impact on a substantial number of small entities. This final rule finalizes NHTSA's proposal of amendments to and clarifications of the application of existing occupant protection standards to vehicles equipped with ADS that also lack traditional manual controls. This final rule will apply to small motor vehicle manufacturers who wish to produce ADS without manual controls and with conventional seating arrangements (
NHTSA has examined this final rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking will not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. This final rule will not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.
The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision may be preserved. However, the Supreme Court has recognized the possibility of implied preemption of such State common law tort causes of action by virtue of NHTSA's rules—even if not expressly preempted.
This second way that NHTSA rules can preempt is dependent upon the higher standard effectively imposed through a State common law tort judgment against the manufacturer, notwithstanding the manufacturer's compliance with the NHTSA standard, creating an obstacle to the accomplishment and execution of that standard. If and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See
Pursuant to E.O. 13132, NHTSA has considered whether this final rule could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation. Under the principles enunciated in
NHTSA solicited comments from the States and other interested parties on this assessment of issues relevant to E.O. 13132 in the NPRM. While one commenter touched on the organization's general support for the concept of federalism, it did not assert that the rulemaking was anything but an appropriate balance between State and Federal regulation.
The Congressional Review Act, 5 U.S.C. 801 et. seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. NHTSA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
When promulgating a regulation, Executive Order 12988 specifically requires that the agency must make every reasonable effort to ensure that the regulation, as appropriate: (1) Specifies in clear language the preemptive effect; (2) specifies in clear language the effect on existing Federal law or regulation, including all provisions repealed, circumscribed, displaced, impaired, or modified; (3) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction; (4) specifies in clear language the retroactive effect; (5) specifies whether administrative proceedings are to be required before parties may file suit in court; (6) explicitly or implicitly defines key terms; and (7) addresses other important issues affecting clarity
Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this final rule is discussed above in connection with Executive Order 13132. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.
Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks,” (62 FR 19885; April 23, 1997) applies to any proposed or final rule that: (1) Is determined to be “economically significant,” as defined in E.O. 12866, and (2) concerns an environmental health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If a rule meets both criteria, the Agency must evaluate the environmental health or safety effects of the rule on children, and explain why the rule is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This final rule is not expected to have a disproportionate health or safety impact on children. Consequently, no further analysis is required under Executive Order 13045.
Executive Order 13609, “Promoting International Regulatory Cooperation,” promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. NHTSA has analyzed this final rule under the policies and Agency responsibilities of Executive Order 13609, and has determined this rule would have no effect on international regulatory cooperation.
Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal Agency unless the collection displays a valid OMB control number. This final rule imposes no new reporting requirements on any person.
Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104–113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.” Voluntary consensus standards are technical standards (
Pursuant to the above requirements, the agency conducted a review of voluntary consensus standards to determine if any were applicable to this final rule. NHTSA searched for, but did not find, voluntary consensus standards directly applicable to the amendments adopted in this final rule. Neither is NHTSA aware of any international regulations or Global Technical Regulation (GTR) activity addressing the subject of this final rule.
SAE Standard J826–1980 was previously approved for use in § 571.208 and that approval continues unchanged.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires the agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the agency to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation of why that alternative was not adopted.
This final rule does not contain a mandate that would impose costs on any of the entities listed above of more than $100 million annually (adjusted for inflation with base year of 1995). As a result, the requirements of Section 202 of the Act do not apply.
NHTSA has analyzed this final rule for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this final rule will not have any significant impact on the quality of the human environment.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Incorporation by Reference, Motor vehicles, Motor vehicle safety.
In consideration of the foregoing, NHTSA amends 49 CFR part 571 as follows:
49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.95.
The additions and revision read as follows:
(b) * * *
(i) That are used by an occupant for real-time, sustained, manual manipulation of the motor vehicle's heading (steering) and/or speed (accelerator and brake); and
(ii) That is positioned such that they can be used by an occupant, regardless of whether the occupant is actively using the system to manipulate the vehicle's motion.
S2.
S3. * * *
(1) There is only one pillar rearward of that plane and it is also a rearmost pillar; or
(2) There is a door frame rearward of the A-pillar and forward of any other pillar or rearmost pillar.
(1) If there is a driver's designated seating position, supports either a roof or any other structure (such as a roll-bar) that is above the driver's head, or if there is no driver's designated seating position, supports either a roof or any other structure (such as a roll-bar) that is above the occupant in the rearmost designated seating position in the front row of seats, or
(2) Is located along the side edge of a window.
S5.1 * * *
(b) A relative velocity of 19 kilometers per hour for vehicles that meet the occupant crash protection requirements of S5.1 of 49 CFR 571.208 by means of inflatable restraint systems and meet the requirements of S4.1.5.1(a)(3) by means of a Type 2 seat belt assembly at any front passenger designated seating position, the deceleration of the head form shall not exceed 80 g continuously for more than 3 milliseconds
S5.1.1 * * *
(d) If the steering control is present, areas outboard of any point of tangency on the instrument panel of a 165 mm diameter head form tangent to and inboard of a vertical longitudinal plane tangent to the inboard edge of the steering control; or
S5.1.2 * * *
(a) The origin of the line tangent to the instrument panel surface shall be a point on a transverse horizontal line through a point 125 mm horizontally forward of the seating reference point of any front outboard passenger designated seating position, displaced vertically an amount equal to the rise which results from a 125 mm forward adjustment of the seat or 19 mm; and
S6.3 * * *
(b) Any target located rearward of a vertical plane 600 mm behind the seating reference point of the rearmost designated seating position. For altered vehicles and vehicles built in two or more stages, including ambulances and motor homes, any target located rearward of a vertical plane 300 mm behind the seating reference point of the driver's designated seating position or the rearmost designated seating position in the front row of seats, if there is no driver's designated seating position (tests for altered vehicles and vehicles built in two or more stages do not include, within the time period for measuring HIC(d), any free motion headform contact with components rearward of this plane). If an altered vehicle or vehicle built in two or more stages is equipped with a transverse
S8.6
(a) During targeting, the steering control and seats may be placed in any position intended for use while the vehicle is in motion.
(b) During testing, the steering control and seats may be removed from the vehicle.
S8.20
S8.24
The revision reads as follows:
S2.
S2.
S3. * * *
(a) This standard applies to passenger cars, multipurpose passenger vehicles, trucks designed to carry at least one person, buses, motorcycles, slide-in campers, pickup covers designed to carry persons while in motion and low speed vehicles, and to glazing materials for use in those vehicles.
S2.
S3. * * *
S5.1.1.4 * * *
(b) * * *
(1) * * *
(ii) * * *
(C) Transverse Setup 1. Orient the vehicle so that its transverse axis is aligned with the axis of the acceleration device, simulating a left-side impact.
S2.
S4.1
The revisions and additions read as follows:
S3.
S4.1.5.6
S4.1.5.6.1
S4.1.5.6.2
S4.1.5.6.3 As specified in S4.1.5.6.1 and S4.1.5.6.2, the vehicles shall meet the frontal crash protection requirements of S5.1.2(b) as specified for front outboard passenger designated seating positions by means of an inflatable restraint system that requires no action by vehicle occupants and the requirements of S14, as specified for front outboard passenger designated seating positions.
S4.1.5.6.4 As specified in S4.1.5.6.1 and S4.1.5.6.2, the designated seating positions have a Type 2 seat belt assembly that conforms to Standard No. 209 and S7.1 through S7.3 of this standard, as specified for front outboard passenger designated seating positions.
S4.1.5.6.5 As specified in S4.1.5.6.1 and S4.1.5.6.2, as appropriate, have a Type 1 or Type 2 seat belt assembly that conforms to Standard No. 209 and S7.1 through S7.3 of this standard.
S4.1.5.6.6 As specified in S4.1.5.6.1 and S4.1.5.6.2, as appropriate, have a Type 2 seat belt assembly that conforms to Standard No. 209 and S7.1 through S7.3 of this standard, as specified for front outboard passenger designated seating positions.
S4.2
S4.2.5.4 * * *
(c) Each truck, bus, and multipurpose passenger vehicle with a GVWR of 8,500 pounds or less and an unloaded vehicle weight of 5,500 pounds or less manufactured on or after September 1, 1995, but before September 1, 1998, whose driver's seating position complies with the requirements of S4.1.2.1(a) of this standard by means not including any type of seat belt and whose right front passenger seating position is equipped with a manual Type 2 seat belt that complies with S5.1 of this standard, with the seat belt assembly adjusted in accordance with S7.4.2, shall be counted as a vehicle complying with S4.1.2.1.
S4.2.5.5 * * *
(a) * * *
(2) Each truck, bus, and multipurpose passenger vehicle with a GVWR of 8,500 pounds or less and an unloaded vehicle weight of 5,500 pounds or less whose driver's seating position complies with the requirements of S4.1.2.1(a) by means not including any type of seat belt and whose right front passenger seating position is equipped with a manual Type 2 seat belt that complies with S5.1 of this standard, with the seat belt assembly adjusted in accordance with S7.4.2, is counted as one vehicle.
S4.2.6.1.1 The amount of trucks, buses, and multipurpose passenger vehicles complying with the requirements of S4.1.5.1(a)(1) of this standard by means of an inflatable restraint system shall be not less than 80 percent of the manufacturer's total combined production of subject vehicles manufactured on or after September 1, 1997 and before September 1, 1998. Each truck, bus, or multipurpose passenger vehicle with a GVWR of 8,500 pounds or less and an unloaded vehicle weight of 5,500 pounds or less manufactured on or after September 1, 1997 and before September 1, 1998, whose driver's seating position complies with S4.1.5.1(a)(1) by means of an inflatable restraint system and whose right front passenger seating position is equipped with a manual Type 2 seat belt assembly that complies with S5.1 of this standard, with the seat belt assembly adjusted in accordance with S7.4.2 of this standard, shall be counted as a vehicle complying with S4.1.5.1(a)(1) by means of an inflatable restraint system. A vehicle shall not be deemed to be in noncompliance with this standard if its manufacturer establishes that it did not have reason to know in the exercise of due care that such vehicle is not in conformity with the requirement of this standard.
S4.2.6.4
S4.4.1 * * *
S4.4.3.2.1 The driver's designated seating position and any outboard designated seating position not rearward of the driver's seating position shall be equipped with a Type 2 seat belt assembly. For a school bus without a driver's designated seating position, the outboard designated seating positions in the front row of seats shall be equipped with Type 2 seat belt assemblies. The seat belt assembly shall comply with Standard No. 209 (49 CFR 571.209) and with S7.1 and S7.2 of this standard. The lap belt portion of the seat belt assembly shall include either an emergency locking retractor or an automatic locking retractor. An automatic locking retractor shall not retract webbing to the next locking position until at least
S4.4.3.2.2 Passenger seating positions, other than those specified in S4.4.3.2.1, shall be equipped with Type 2 seat belt assemblies that comply with the requirements of S7.1.1.5, S7.1.5 and S7.2 of this standard.
S4.4.4.1.1
S4.4.4.1.2
S4.4.5.1.1 The driver's designated seating position and any outboard designated seating position not rearward of the driver's seating position shall be equipped with a Type 2 seat belt assembly. The seat belt assembly shall comply with Standard No. 209 (49 CFR 571.209) and with S7.1 and S7.2 of this standard. For a bus without a driver's designated seating position, any outboard designated seating position in the front row of seats, shall be equipped with Type 2 seat belt assemblies. If a seat belt assembly installed in compliance with this requirement includes an automatic locking retractor for the lap belt portion, that seat belt assembly shall comply with paragraphs (a) through (c) of S4.4.4.1.2 of this standard. If a seat belt assembly installed in compliance with this requirement incorporates any webbing tension-relieving device, the vehicle owner's manual shall include the information specified in S7.4.2(b) of this standard for the tension-relieving device, and the vehicle shall comply with S7.4.2(c) of this standard.
S4.4.5.1.2 Passenger seating positions, other than those specified in S4.4.5.1.1 and seating positions on prison buses rearward of the driver's seating position, shall:
(e) Comply with the requirements of S7.1.1.5, S7.1.1.6, S7.1.3, and S7.2 of this standard.
S4.5.1 * * *
(c) * * *
(3) If a vehicle does not have an inflatable restraint at any front seating position other than that for the driver's designated seating position, the pictogram may be omitted from the label shown in Figure 6c.
(e) * * *
(1) Except as provided in S4.5.1(e)(2) or S4.5.1(e)(3), each vehicle that is equipped with an inflatable restraint for the passenger position shall have a label attached to a location on the dashboard or the steering control hub that is clearly visible from all front seating positions. The label need not be permanently affixed to the vehicle. This label shall conform in content to the label shown in Figure 7 of this standard, and shall comply with the requirements of S4.5.1(e)(1)(i) through S4.5.1(e)(1)(iii).
(2) Vehicles certified to meet the requirements specified in S19, S21, and S23 before December 1, 2003, that are equipped with an inflatable restraint for the passenger position shall have a label attached to a location on the dashboard or the steering control hub that is clearly visible from all front seating positions. The label need not be permanently affixed to the vehicle. This label shall conform in content to the label shown in either Figure 9 or Figure 12 of this standard, at manufacturer's option, and shall comply with the requirements of S4.5.1(e)(2)(i) through S4.5.1(e)(2)(iv).
(3) Vehicles certified to meet the requirements specified in S19, S21, and S23 on or after December 1, 2003, that are equipped with an inflatable restraint for the passenger position shall have a label attached to a location on the dashboard or the steering control hub that is clearly visible from all front seating positions. The label need not be permanently affixed to the vehicle. This label shall conform in content to the label shown in Figure 12 of this standard and shall comply with the requirements of S4.5.1(e)(3)(i) through S4.5.1(e)(3)(iv).
(f)
S4.11 * * *
(d) For driver dummy low risk deployment tests, the injury criteria shall be met when calculated based on
S7.1.1.5 * * *
(a) Each designated seating position, except the driver's designated seating position, and except any right front seating position that is equipped with an automatic belt, that is in any motor vehicle, except walk-in van-type vehicles and vehicles manufactured to be sold exclusively to the U.S. Postal Service, and that is forward-facing or can be adjusted to be forward-facing, shall have a seat belt assembly whose lap belt portion is lockable so that the seat belt assembly can be used to tightly secure a child restraint system. The means provided to lock the lap belt or lap belt portion of the seat belt assembly shall not consist of any device that must be attached by the vehicle user to the seat belt webbing, retractor, or any other part of the vehicle. Additionally, the means provided to lock the lap belt or lap belt portion of the seat belt assembly shall not require any inverting, twisting or otherwise deforming of the belt webbing.
S8.1.4 Adjustable steering controls are adjusted so that the steering control hub is at the geometric center of the locus it describes when it is moved through its full range of driving positions.
S8.2.7 * * *
(c) A vertical plane through the geometric center of the barrier impact surface and perpendicular to that surface passes through the driver's seating position seating reference point in the tested vehicle.
S10.2.1 The driver dummy's upper arms shall be adjacent to the torso with the centerlines as close to a vertical plane as possible.
S10.2.2 Any front outboard passenger dummy's upper arms shall be in contact with the seat back and the sides of the torso.
S10.3.1 The palms of the driver dummy shall be in contact with the outer part of the steering control rim at the rim's horizontal centerline. The thumbs shall be over the steering control rim and shall be lightly taped to the steering control rim so that if the hand of the test dummy is pushed upward by a force of not less than 2 pounds and not more than 5 pounds, the tape shall release the hand from the steering control rim.
S10.3.2 The palms of any passenger test dummy shall be in contact with the outside of the thigh. The little finger shall be in contact with the seat cushion.
S10.4.1.1 In vehicles equipped with bench seats, the upper torso of the driver and front outboard passenger dummies shall rest against the seat back. The midsagittal plane of the driver dummy shall be vertical and parallel to the vehicle's longitudinal centerline, and pass through the center of rotation of the steering control. The midsagittal plane of any passenger dummy shall be vertical and parallel to the vehicle's longitudinal centerline and the same distance from the vehicle's longitudinal centerline as the midsagittal plane of the driver dummy, if there is a driver's seating position. If there is no driver's seating position, the midsagittal plane of any front outboard passenger dummy shall be vertical and parallel to the vehicle's longitudinal centerline, and pass through the seating reference point of the seat that it occupies.
S10.4.1.2 In vehicles equipped with bucket seats, the upper torso of the driver and passenger dummies shall rest against the seat back. The midsagittal plane of the driver and any front outboard passenger dummy shall be vertical and shall coincide with the longitudinal centerline of the bucket seat.
S10.4.2.1
S10.5
S10.6.1
S10.6.2 Front outboard
S10.7
S13.3
S16.2.9
S16.2.9.1 Adjust a tiltable steering control, if possible, so that the steering control hub is at the geometric center of its full range of driving positions.
S16.2.9.2 If there is no setting detent at the mid-position, lower the steering control to the detent just below the mid-position.
S16.2.9.3 If the steering column is telescoping, place the steering column
S16.2.10
S16.2.10.3
S16.3.2.1.4
S16.3.2.1.8 If needed, extend the legs slightly so that the feet are not in contact with the floor pan. Let the thighs rest on the seat cushion to the extent permitted by the foot movement. Keeping the leg and the thigh in a vertical plane, place the foot in the vertical longitudinal plane that passes through the centerline of the accelerator pedal. Rotate the left thigh outboard about the hip until the center of the knee is the same distance from the midsagittal plane of the dummy as the right knee ±5 mm (±0.2 in). Using only the control that primarily moves the seat fore and aft, attempt to return the seat to the full forward position. If either of the dummy's legs first contacts the steering control, then adjust the steering control, if adjustable, upward until contact with the steering control is avoided. If the steering control is not adjustable, separate the knees enough to avoid steering control contact. Proceed with moving the seat forward until either the leg contacts the vehicle interior or the seat reaches the full forward position. (The right foot may contact and depress the accelerator and/or change the angle of the foot with respect to the leg during seat movement.) If necessary to avoid contact with the vehicles brake or clutch pedal, rotate the test dummy's left foot about the leg. If there is still interference, rotate the left thigh outboard about the hip the minimum distance necessary to avoid pedal interference. If a dummy leg contacts the vehicle interior before the full forward position is attained, position the seat at the next detent where there is no contact. If the seat is a power seat, move the seat fore and aft to avoid contact while assuring that there is a maximum of 5 mm (0.2 in) distance between the vehicle interior and the point on the dummy that would first contact the vehicle interior. If the steering control was moved, return it to the position described in S16.2.9. If the steering control contacts the dummy's leg(s) prior to attaining this position, adjust it to the next higher detent, or if infinitely adjustable, until there is 5 mm (0.2 in) clearance between the control and the dummy's leg(s).
S16.3.2.1.9 For vehicles without adjustable seat backs, adjust the lower neck bracket to level the head as much as possible. For vehicles with adjustable seat backs, while holding the thighs in place, rotate the seat back forward until the transverse instrumentation platform of the head is level to within ±0.5 degree, making sure that the pelvis does not interfere with the seat bight. Inspect the abdomen to ensure that it is properly installed. If the torso contacts the steering control, adjust the steering control in the following order until there is no contact: Telescoping adjustment, lowering adjustment, raising adjustment. If the vehicle has no adjustments, or contact with the steering control cannot be eliminated by adjustment, position the seat at the next detent where there is no contact with the steering control as adjusted in S16.2.9. If the seat is a power seat, position the seat to avoid contact while assuring that there is a maximum of 5 mm (0.2 in) distance between the steering control as adjusted in S16.2.9 and the point of contact on the dummy.
S16.3.2.3.2 Place the palms of the dummy in contact with the outer part of the steering control rim at its horizontal centerline with the thumbs over the steering control rim.
S16.3.2.3.3 If it is not possible to position the thumbs inside the steering control rim at its horizontal centerline, then position them above and as close to the horizontal centerline of the steering control rim as possible.
S16.3.2.3.4 Lightly tape the hands to the steering control rim so that if the hand of the test dummy is pushed upward by a force of not less than 9 N (2 lb) and not more than 22 N (5 lb), the tape releases the hand from the steering control rim.
S16.3.3 Front outboard
S16.3.3.1 Front outboard
S16.3.3.1.2 Fully recline the seat back, if adjustable. Install the dummy into any front outboard passenger seat, such that when the legs are 120 degrees to the thighs, the calves of the legs are not touching the seat cushion.
S16.3.3.1.4
S16.3.3.2 Front outboard
S16.3.3.3 Front outboard
S16.3.4
S16.3.5
S19.2.1 The vehicle shall be equipped with an automatic suppression feature for any front outboard passenger air bag which results in deactivation of the air bag during each of the static tests specified in S20.2 (using the 49 CFR part 572 Subpart R 12-month-old CRABI child dummy in any of the child restraints identified in sections B and C of appendix A or A–1 of this standard, as appropriate and the 49 CFR part 572 subpart K Newborn Infant dummy in any of the car beds identified in section A of appendix A or A–1, as appropriate), and activation of the air bag system during each of the static tests specified in S20.3 (using the 49 CFR part 572 Subpart O 5th percentile adult female dummy).
S19.2.2 The vehicle shall be equipped with telltales for each front outboard passenger seat which emit light whenever the associated front outboard passenger air bag system is deactivated and does not emit light whenever the associated front outboard passenger air bag system is activated, except that the telltale(s) need not illuminate when the associated front outboard passenger seat is unoccupied. For telltales associated with multiple front outboard passenger seats, it shall
(d) Shall be located within the interior of the vehicle and forward of and above the design H-point of both the driver's and any front outboard passenger's seat in their forwardmost seating positions and shall not be located on or adjacent to a surface that can be used for temporary or permanent storage of objects that could obscure the telltale from either the driver's or any-front outboard passenger's view, or located where the telltale would be obscured from the driver's view or the adjacent front outboard passenger's view if a rear-facing child restraint listed in appendix A or A–1, as appropriate, is installed in any-front outboard passenger's seat.
(e) Shall be visible and recognizable to a driver and any front outboard passenger during night and day when the occupants have adapted to the ambient light roadway conditions.
(g) Means shall be provided for making telltales visible and recognizable to the driver and any front outboard passenger under all driving conditions. The means for providing the required visibility may be adjustable manually or automatically, except that the telltales may not be adjustable under any driving conditions to a level that they become invisible or not recognizable to the driver and any front outboard passenger.
(h) The telltale must not emit light except when any passenger air bag is turned off or during a bulb check upon vehicle starting.
S19.2.3 The vehicle shall be equipped with a mechanism that indicates whether the air bag system is suppressed, regardless of whether any front outboard passenger seat is occupied. The mechanism need not be located in the occupant compartment unless it is the telltale described in S19.2.2.
S19.3
S20.1.2 Unless otherwise specified, each vehicle certified to this option shall comply in tests conducted with any front outboard passenger seating position, if adjustable fore and aft, at full rearward, middle, and full forward positions. If the child restraint or dummy contacts the vehicle interior, move the seat rearward to the next detent that provides clearance, or if the seat is a power seat, using only the control that primarily moves the seat fore and aft, move the seat rearward while assuring that there is a maximum of 5 mm (0.2 in) clearance between the dummy or child restraint and the vehicle interior.
S20.2
S20.2.1.4 For bucket seats, “Plane B” refers to a vertical plane parallel to the vehicle longitudinal centerline through the longitudinal centerline of any front outboard passenger vehicle seat cushion. For bench seats in vehicles with manually operated driving controls, “Plane B” refers to a vertical plane through any front outboard passenger vehicle seat parallel to the vehicle longitudinal centerline the same distance from the longitudinal centerline of the vehicle as the center of the steering control. For bench seats in vehicles without manually operated driving controls, “Plane B” refers to the vertical plane parallel to the vehicle longitudinal centerline, through any front outboard passenger seat's SgRP.
S20.2.2.3 For bucket seats, “Plane B” refers to a vertical plane parallel to the vehicle longitudinal centerline through the longitudinal centerline of any front outboard passenger vehicle seat cushion. For bench seats in vehicles with manually operated driving controls, “Plane B” refers to a vertical plane through any front outboard passenger seat parallel to the vehicle longitudinal centerline the same distance from the longitudinal centerline of the vehicle as the center of the steering control. For bench seats in vehicles without manually operated driving controls, “Plane B” refers to the vertical plane parallel to the vehicle longitudinal centerline, through any front outboard passenger seat's SgRP.
S20.3
S20.3.1 Each vehicle certified to this option shall comply in tests conducted with any front outboard passenger seating position, if adjustable fore and aft, at the mid-height, in the full rearward and middle positions determined in S20.1.9.4, and the forward position determined in S16.3.3.1.8.
S20.3.2 Place a 49 CFR part 572 subpart O 5th percentile adult female test dummy at any front outboard passenger seating position of the vehicle, in accordance with procedures specified in S16.3.3 of this standard, except as specified in S20.3.1, subject to the fore-aft seat positions in S20.3.1. Do not fasten the seat belt.
S20.4.1 Position any front outboard passenger vehicle seat at the mid-height in the full forward position determined in S20.1.9.4, and adjust the seat back (if adjustable independent of the seat) to the nominal design position for a 50th percentile adult male as specified in S8.1.3. Position adjustable lumbar supports so that the lumbar support is in its lowest, retracted or deflated adjustment position. Position any adjustable parts of the seat that provide additional support so that they are in the lowest or most open adjustment position. If adjustable, set the head restraint at the full down and most forward position. If the child restraint or dummy contacts the vehicle interior, do the following: Using only the control that primarily moves the seat in the fore and aft direction, move the seat rearward to the next detent that provides clearance; or if the seat is a power seat, move the seat rearward while assuring that there is a maximum of 5 mm (0.2 in) clearance.
S20.4.4 For bucket seats, “Plane B” refers to a vertical plane parallel to the vehicle longitudinal centerline through the longitudinal centerline of any front outboard passenger seat cushion. For bench seats in vehicles with manually operated driving controls, “Plane B” refers to a vertical plane through any front outboard passenger seat parallel to the vehicle longitudinal centerline that is the same distance from the longitudinal centerline of the vehicle as the center of the steering control. For bench seats in vehicles without manually operated driving controls, “Plane B” refers to the vertical plane parallel to the vehicle longitudinal centerline, through any front outboard passenger seat's SgRP.
S20.4.9 Deploy any front outboard passenger frontal air bag system. If the air bag system contains a multistage inflator, the vehicle shall be able to comply at any stage or combination of stages or time delay between successive
S21.2.1 The vehicle shall be equipped with an automatic suppression feature for any front outboard passenger air bag which results in deactivation of the air bag during each of the static tests specified in S22.2 (using the 49 CFR part 572 subpart P 3-year-old child dummy and, as applicable, any child restraint specified in section C and section D of appendix A or A–1 of this standard, as appropriate), and activation of the air bag system during each of the static tests specified in S22.3 (using the 49 CFR part 572 subpart O 5th percentile adult female dummy).
S21.2.3 The vehicle shall be equipped with a mechanism that indicates whether the air bag is suppressed, regardless of whether any front outboard passenger seat is occupied. The mechanism need not be located in the occupant compartment unless it is the telltale described in S21.2.2.
S21.3
S21.4
S22.1.2 Unless otherwise specified, each vehicle certified to this option shall comply in tests conducted with any front outboard passenger seating position at the mid-height, in the full rearward, middle, and the full forward positions determined in S22.1.7.4. If the dummy contacts the vehicle interior, using only the control that primarily moves the seat fore and aft, move the seat rearward to the next detent that provides clearance. If the seat is a power seat, move the seat rearward while assuring that there is a maximum of 5 mm (0.2 in) clearance.
S22.1.3 Except as otherwise specified, if the child restraint has an anchorage system as specified in S5.9 of FMVSS No. 213 and is tested in a vehicle with any front outboard passenger vehicle seat that has an anchorage system as specified in FMVSS No. 225, the vehicle shall comply with the belted test conditions with the restraint anchorage system attached to the vehicle seat anchorage system and the vehicle seat belt unattached. It shall also comply with the belted test conditions with the restraint anchorage system unattached to the vehicle seat anchorage system and the vehicle seat belt attached.
S22.2
S22.2.1.1 Install the restraint in any front outboard passenger vehicle seat in accordance, to the extent possible, with the child restraint manufacturer's instructions provided with the seat for use by children with the same height and weight as the 3-year-old child dummy.
S22.2.1.3 For bucket seats, “Plane B” refers to a vertical longitudinal plane through the longitudinal centerline of the seat cushion of any front outboard passenger vehicle seat. For bench seats in vehicles with manually operated driving controls, “Plane B” refers to a vertical plane through any front outboard passenger vehicle seat parallel to the vehicle longitudinal centerline the same distance from the longitudinal centerline of the vehicle as the center of the steering control. For bench seats in vehicles without manually operated driving controls, “Plane B” refers to the vertical plane parallel to the vehicle longitudinal centerline, through any front outboard passenger seat's SgRP.
S22.2.2
S22.2.2.1 * * *
(a) Place the dummy on any front outboard passenger seat.
(b) In the case of vehicles equipped with bench seats and with manually operated driving controls, position the midsagittal plane of the dummy vertically and parallel to the vehicle's longitudinal centerline and the same distance from the vehicle's longitudinal centerline, within ±10 mm (±0.4 in), as the center of the steering control. For bench seats in vehicles without manually operated driving controls, position the midsagittal plane of any front outboard dummy vertically and parallel to the vehicle's longitudinal centerline, within ±10 mm (±0.4 in) of the seating reference point of the seat that it occupies. In the case of vehicles equipped with bucket seats, position the midsagittal plane of any front outboard dummy vertically such that it coincides with the longitudinal centerline of the seat cushion, within ±10 mm (±0.4 in). Position the torso of the dummy against the seat back. Position the dummy's thighs against the seat cushion.
S22.2.2.3 * * *
(a) Place the dummy on any front outboard passenger seat.
(b) In the case of vehicles equipped with bench seats and with manually operated driving controls, position the midsagittal plane of the dummy vertically and parallel to the vehicle's longitudinal centerline and the same distance from the vehicle's longitudinal centerline, within ±10 mm (±0.4 in), as the center of the steering control. For bench seats in vehicles without manually operated driving controls, position the midsagittal plane of any front outboard dummy vertically and parallel to the vehicle's longitudinal centerline, within ±10 mm (±0.4 in) of the seating reference point of the seat that it occupies. In the case of vehicles equipped with bucket seats, position the midsagittal plane of any front outboard dummy vertically such that it coincides with the longitudinal centerline of the seat cushion, within ±10 mm (±0.4 in). Position the dummy with the spine vertical so that the horizontal distance from the dummy's back to the seat back is no less than 25 mm (1.0 in) and no more than 150 mm (6.0 in), as measured along the dummy's midsagittal plane at the mid-sternum level. To keep the dummy in position, a material with a maximum breaking strength of 311 N (70 lb) may be used to hold the dummy.
S22.2.2.4 * * *
(a) In the case of vehicles equipped with bench seats and with manually operated driving controls, position the midsagittal plane of the dummy vertically and parallel to the vehicle's
S22.2.2.5 * * *
(a) In the case of vehicles equipped with bench seats and with manually operated driving controls, position the midsagittal plane of the dummy vertically and parallel to the vehicle's longitudinal centerline and the same distance from the vehicle's longitudinal centerline, within ±10 mm (±0.4 in), as the center of the steering control rim. For bench seats in vehicles without manually operated driving controls, position the midsagittal plane of any front outboard dummy vertically and parallel to the vehicle's longitudinal centerline, within ±10 mm (±0.4 in) of the seating reference point of the seat that it occupies. In the case of vehicles equipped with bucket seats, position the midsagittal plane of any front outboard dummy vertically such that it coincides with the longitudinal centerline of the seat cushion, within ±10 mm (±0.4 in). Position the dummy in a standing position on any front outboard passenger seat cushion facing the front of the vehicle while placing the heels of the dummy's feet in contact with the seat back.
S22.2.2.6 * * *
(a) In the case of vehicles equipped with bench seats and manually operated driving controls, position the midsagittal plane of the dummy vertically and parallel to the vehicle's longitudinal centerline and the same distance from the vehicle's longitudinal centerline, within ±10 mm (±0.4 in), as the center of the steering control. For bench seats in vehicles without manually operated driving controls, position the midsagittal plane of any front outboard dummy vertically and parallel to the vehicle's longitudinal centerline, within ±10 mm (±0.4 in) of the seating reference point of the seat that it occupies. In the case of vehicles equipped with bucket seats, position the midsagittal plane of any front outboard dummy vertically such that it coincides with the longitudinal centerline of the seat cushion, within ±10 mm (±0.4 in).
(b) Position the dummy in a kneeling position in any front outboard passenger vehicle seat with the dummy facing the front of the vehicle with its toes at the intersection of the seat back and seat cushion. Position the dummy so that the spine is vertical. Push down on the legs so that they contact the seat as much as possible and then release. Place the arms parallel to the spine.
S22.2.2.7 * * *
(a) In the case of vehicles equipped with bench seats and manually operated driving controls, position the midsagittal plane of the dummy vertically and parallel to the vehicle's longitudinal centerline and the same distance from the vehicle's longitudinal centerline, within ±10 mm (±0.4 in), as the center of the steering control. For bench seats in vehicles without manually operated driving controls, position the midsagittal plane of any front outboard dummy vertically and parallel to the vehicle's longitudinal centerline, within ±10 mm (±0.4 in) of the seating reference point of the seat that it occupies. In the case of vehicles equipped with bucket seats, position the midsagittal plane of any front outboard dummy vertically such that it coincides with the longitudinal centerline of the seat cushion, within ±10 mm (±0.4 in).
(b) Position the dummy in a kneeling position in any front outboard passenger vehicle seat with the dummy facing the rear of the vehicle. Position the dummy such that the dummy's head and torso are in contact with the seat back. Push down on the legs so that they contact the seat as much as possible and then release. Place the arms parallel to the spine.
S22.2.2.8 * * *
(a) Lay the dummy on any front outboard passenger vehicle seat such that the following criteria are met:
(6) The head of the dummy is positioned towards the nearest passenger door, and
S22.3
S22.3.1 Each vehicle certified to this option shall comply in tests conducted with any front outboard passenger seating position at the mid-height, in the full rearward, and middle positions determined in S22.1.7.4, and the forward position determined in S16.3.3.1.8.
S22.3.2 Place a 49 CFR part 572 subpart O 5th percentile adult female test dummy at any front outboard passenger seating position of the vehicle, in accordance with procedures specified in S16.3.3 of this standard, except as specified in S22.3.1. Do not fasten the seat belt.
S22.4.2.2 Place the dummy in any front outboard passenger seat such that:
S22.4.3.1 Place any front outboard passenger seat at the mid-height, in full rearward seating position determined in S22.1.7.4. Place the seat back, if adjustable independent of the seat, at the manufacturer's nominal design seat back angle for a 50th percentile adult male as specified in S8.1.3. Position any adjustable parts of the seat that provide additional support so that they are in the lowest or most open adjustment position. If adjustable, set the head restraint in the lowest and most forward position.
S22.4.3.2 Place the dummy in any front outboard passenger seat such that:
S22.4.4 Deploy any front outboard passenger frontal air bag system. If the frontal air bag system contains a multistage inflator, the vehicle shall be able to comply with the injury criteria at any stage or combination of stages or time delay between successive stages that could occur in a rigid barrier crash test at or below 26 km/h (16 mph), under the test procedure specified in S22.5.
S22.5.1 The test described in S22.5.2 shall be conducted with an unbelted 50th percentile adult male test dummy in the driver's seating position according to S8 as it applies to that seating position and an unbelted 5th percentile adult female test dummy either in any front outboard passenger vehicle seating position according to S16 as it applies to that seating position or at any fore-aft seat position on any passenger side.
S23.2.1 The vehicle shall be equipped with an automatic suppression feature for any front outboard passenger frontal air bag system which results in deactivation of the air bag during each of the static tests specified in S24.2 (using the 49 CFR part 572 subpart N 6-year-old child dummy in any of the child restraints specified in section D of appendix A or A–1 of this standard, as appropriate), and activation of the air bag system
S23.2.3 The vehicle shall be equipped with a mechanism that indicates whether the air bag is suppressed, regardless of whether any front outboard passenger seat is occupied. The mechanism need not be located in the occupant compartment unless it is the telltale described in S23.2.2.
S23.3
S23.4
S24.1.2 Unless otherwise specified, each vehicle certified to this option shall comply in tests conducted with any front outboard passenger seating position at the mid-height, in the full rearward seat track position, the middle seat track position, and the full forward seat track position as determined in this section. Using only the control that primarily moves the seat in the fore and aft direction, determine the full rearward, middle, and full forward positions of the SCRP. Using any seat or seat cushion adjustments other than that which primarily moves the seat fore-aft, determine the SCRP mid-point height for each of the three fore-aft test positions, while maintaining as closely as possible, the seat cushion angle determined in S16.2.10.3.1. Set the seat back angle, if adjustable independent of the seat, at the manufacturer's nominal design seat back angle for a 50th percentile adult male as specified in S8.1.3. If the dummy contacts the vehicle interior, move the seat rearward to the next detent that provides clearance. If the seat is a power seat, move the seat rearward while assuring that there is a maximum of 5 mm (0.2 in) distance between the vehicle interior and the point on the dummy that would first contact the vehicle interior.
S24.1.3 Except as otherwise specified, if the booster seat has an anchorage system as specified in S5.9 of FMVSS No. 213 and is used under this standard in testing a vehicle with any front outboard passenger vehicle seat that has an anchorage system as specified in FMVSS No. 225, the vehicle shall comply with the belted test conditions with the restraint anchorage system attached to the FMVSS No. 225 vehicle seat anchorage system and the vehicle seat belt unattached. It shall also comply with the belted test conditions with the restraint anchorage system unattached to the FMVSS No. 225 vehicle seat anchorage system and the vehicle seat belt attached. The vehicle shall comply with the unbelted test conditions with the restraint anchorage system unattached to the FMVSS No. 225 vehicle seat anchorage system.
S24.2
S24.2.3
(a) Place the dummy in the seated position in any front outboard passenger vehicle seat. For bucket seats, position the midsagittal plane of the dummy vertically such that it coincides with the longitudinal centerline of the seat cushion, within ±10 mm (±0.4 in). For bench seats in vehicles with manually operated driving controls, position the midsagittal plane of the dummy vertically and parallel to the vehicle's longitudinal centerline and the same distance from the longitudinal centerline of the vehicle, within ±10 mm (±0.4 in), as the center of rotation of the steering control. For bench seats in vehicles without manually operated driving controls, position the midsagittal plane of any front outboard dummy vertically and parallel to the vehicle's longitudinal centerline, within ±10 mm (±0.4 in) of the seating reference point of the seat that it occupies.
S24.3
S24.3.1 Each vehicle certified to this option shall comply in tests conducted with any front outboard passenger seating position at the mid-height, in the full rearward and middle positions determined in S24.1.2, and the forward position determined in S16.3.3.1.8.
S24.3.2 Place a 49 CFR part 572 subpart O 5th percentile adult female test dummy at any front outboard passenger seating position of the vehicle, in accordance with procedures specified in S16.3.3 of this standard, except as specified in S24.3.1. Do not fasten the seat belt.
S24.4.2.3 Place the dummy in any front outboard passenger seat such that:
S24.4.3.1 Place any front outboard passenger seat at the mid-height full rearward seating position determined in S24.1.2. Place the seat back, if adjustable independent of the seat, at the manufacturer's nominal design seat back angle for a 50th percentile adult male as specified in S8.1.3. Position any adjustable parts of the seat that provide additional support so that they are in the lowest or most open adjustment position. Position an adjustable head restraint in the lowest and most forward position.
S24.4.3.2 Place the dummy in any front outboard passenger seat such that:
S24.4.4 Deploy any front outboard passenger frontal air bag system. If the frontal air bag system contains a multistage inflator, the vehicle shall be able to comply with the injury criteria at any stage or combination of stages or time delay between successive stages that could occur in a rigid barrier crash test at or below 26 km/h (16 mph), under the test procedure specified in S22.5.
S26.2.1 Adjust the steering controls so that the steering control hub is at the geometric center of the locus it describes when it is moved through its full range of driving positions. If there is no setting at the geometric center, position it one setting lower than the geometric center. Set the rotation of the steering control so that the vehicle wheels are pointed straight ahead.
S26.2.2 Mark a point on the steering control cover that is longitudinally and transversely, as measured along the surface of the steering control cover, within ±6 mm (±0.2 in) of the point that is defined by the intersection of the steering control cover and a line between the volumetric center of the smallest volume that can encompass the folded undeployed air bag and the volumetric center of the static fully inflated air bag. Locate the vertical plane parallel to the vehicle longitudinal centerline through the
S26.2.4.3 The dummy's thorax instrument cavity rear face is 6 degrees forward (toward the front of the vehicle) of the steering control angle (
S26.2.4.4 The initial transverse distance between the longitudinal centerlines at the front of the dummy's knees is 160 to 170 mm (6.3 to 6.7 in), with the thighs and legs of the dummy in vertical planes.
S26.2.5 Maintaining the spine angle, slide the dummy forward until the head/torso contacts the steering control.
S26.3.2 Adjust the steering controls so that the steering control hub is at the geometric center of the locus it describes when it is moved through its full range of driving positions. If there is no setting at the geometric center, position it one setting lower than the geometric center. Set the rotation of the steering control so that the vehicle wheels are pointed straight ahead.
S26.3.3 Mark a point on the steering control cover that is longitudinally and transversely, as measured along the surface of the steering control cover, within ±6 mm (±0.2 in) of the point that is defined by the intersection of the steering control cover and a line between the volumetric center of the smallest volume that can encompass the folded undeployed air bag and the volumetric center of the static fully inflated air bag. Locate the vertical plane parallel to the vehicle longitudinal centerline through the point located on the steering control cover. This is referred to as “Plane E.”
S26.3.4.3 The dummy's thorax instrument cavity rear face is 6 degrees forward (toward the front of the vehicle) of the steering control angle (
S26.3.5 Maintaining the spine angle, slide the dummy forward until the head/torso contacts the steering control.
S26.3.6 While maintaining the spine angle, position the dummy so that a point on the chin 40 mm (1.6 in) ±3 mm (±0.1 in) below the center of the mouth (chin point) is, within ±10 mm (±0.4 in), in contact with a point on the steering control rim surface closest to the dummy that is 10 mm (0.4 in) vertically below the highest point on the rim in Plane E. If the dummy's head contacts the vehicle windshield or upper interior before the prescribed position can be obtained, lower the dummy until there is no more than 5 mm (0.2 in) clearance between the vehicle's windshield or upper interior, as applicable.
S26.3.7 If the steering control can be adjusted so that the chin point can be in contact with the rim of the uppermost portion of the steering control, adjust the steering control to that position. If the steering control contacts the dummy's leg(s) prior to attaining this position, adjust it to the next highest detent, or if infinitely adjustable, until there is a maximum of 5 mm (0.2 in) clearance between the control and the dummy's leg(s). Readjust the dummy's torso such that the thorax instrument cavity rear face is 6 degrees forward of the steering control angle. Position the dummy so that the chin point is in contact, or if contact is not achieved, as close as possible to contact with the rim of the uppermost portion of the steering control.
S27.5.2 Front outboard
S27.6.2 Front outboard
S28.2 Front outboard
S28.4 Front outboard
S3.
S2
S5 * * *
(c) * * *
(4) Vehicles in which the seat for the driver or any front outboard passenger has been removed and wheelchair restraints installed in place of the seat are excluded from meeting the vehicle-to-pole test at that position; and
S8.3.1.3
S8.4
S10.2
S10.3.1
S10.3.2.
S10.3.2.3
S10.5
S12.1.1
(a) * * *
(1) For a bench seat. The upper torso of the test dummy rests against the seat back. The midsagittal plane of the test dummy is vertical and parallel to the vehicle's longitudinal centerline, and passes through the center of the steering control.
S12.1.2
(a) * * *
(1) For a bench seat. The upper torso of the test dummy rests against the seat back. The midsagittal plane of the test dummy is vertical and parallel to the vehicle's longitudinal centerline. For vehicles with manually operated driving controls the midsagittal plane of the test dummy is the same distance from the vehicle's longitudinal centerline as would be the midsagittal plane of a test dummy positioned in the driver's seating position under S12.1.1(a)(1). For vehicles without manually operated driving controls the midsagittal plane of the test dummy shall be vertical and parallel to the vehicle's longitudinal centerline, and passes through any front outboard passenger seat's SgRP.
S12.1.3 * * *
(a) * * *
(1) For a bench seat. The upper torso of the test dummy rests against the seat back. The midsagittal plane of the test dummy is vertical and parallel to the vehicle's longitudinal centerline, and, if possible, the same distance from the vehicle's longitudinal centerline as the midsagittal plane of a test dummy positioned in the driver's seating position under S12.1.1(a)(1) or left front passenger seating positioned under S12.1.2(a)(1) in vehicles without manually operated driving controls. If it is not possible to position the test dummy so that its midsagittal plane is parallel to the vehicle longitudinal centerline and is at this distance from the vehicle's longitudinal centerline, the test dummy is positioned so that some portion of the test dummy just touches, at or above the seat level, the side surface of the vehicle, such as the upper quarter panel, an armrest, or any interior trim (
S12.2.1 * * *
(c)
S12.3.1 * * *
(d)
S12.3.2 * * *
(a) * * *
(4) Bench seats. Position the midsagittal plane of the dummy vertical and parallel to the vehicle's longitudinal centerline and aligned within ±10 mm (±0.4 in) of the center of the steering control rim.
(8) If needed, extend the legs slightly so that the feet are not in contact with the floor pan. Let the thighs rest on the seat cushion to the extent permitted by the foot movement. Keeping the leg and the thigh in a vertical plane, place the foot in the vertical longitudinal plane that passes through the centerline of the accelerator pedal. Rotate the left thigh outboard about the hip until the center of the knee is the same distance from the midsagittal plane of the dummy as the right knee ±5 mm (±0.2 in). Using only the control that moves the seat fore and aft, attempt to return the seat to the full forward position. If either of the dummy's legs first contacts the steering control, then adjust the steering control, if adjustable, upward until contact with the steering control is avoided. If the steering control is not adjustable, separate the knees enough to avoid steering control contact. Proceed with moving the seat forward until either the leg contacts the vehicle interior or the seat reaches the full forward position. (The right foot may contact and depress the accelerator and/or change the angle of the foot with respect to the leg during seat movement.) If necessary to avoid
(9) * * *
(ii)
(10) If the torso contacts the steering control, adjust the steering control in the following order until there is no contact: Telescoping adjustment, lowering adjustment, raising adjustment. If the vehicle has no adjustments or contact with the steering control cannot be eliminated by adjustment, position the seat at the next detent where there is no contact with the steering control as adjusted in S10.5. If the seat is a power seat, position the seat to avoid contact while assuring that there is a maximum of 5 mm (0.2 in) distance between the steering control as adjusted in S10.5 and the point of contact on the dummy.
S12.3.3 * * *
(a) * * *
(2) Fully recline the seat back, if adjustable. Place the dummy into any passenger seat, such that when the legs are positioned 120 degrees to the thighs, the calves of the legs are not touching the seat cushion.
(4) Bench seats. Position the midsagittal plane of the dummy vertical and parallel to the vehicle's longitudinal centerline and the same distance from the vehicle's longitudinal centerline, within ±10 mm (±0.4 in), as the midsagittal plane of the driver dummy, if there is a driver's seating position. Otherwise, the midsagittal plane of any front outboard passenger dummy shall be vertical, parallel to the vehicle's longitudinal centerline, and pass, within ±10 mm (±0.4 in), through the seating reference point of the seating that it occupies.
S3.1 * * *
(a) This standard applies to passenger cars, and to multipurpose passenger vehicles, trucks designed to carry at least one person, and buses with a GVWR of 4,536 kilograms (10,000 pounds) or less, according to the implementation schedule specified in S8 and S9 of this section. However, it does not apply to—
S7.1 Support the vehicle off its suspension and rigidly secure the sills and the chassis frame (when applicable) of the vehicle on a rigid horizontal surface(s) at a longitudinal attitude of 0 degrees ±0.5 degrees. Measure the longitudinal vehicle attitude along both the left and right front sill. Determine the lateral vehicle attitude by measuring the vertical distance between a level surface and a standard reference point on the bottom of the left and right front side sills. The difference between the vertical distance measured on the left front side and the right front side sills is not more than ±10 mm. Close all windows, close and lock all doors, and close and secure any moveable roof panel, moveable shade, or removable roof structure in place over the occupant compartment. Remove roof racks or other non-structural components. For a vehicle built on a chassis-cab incomplete vehicle that has some portion of the added body structure above the height of the incomplete vehicle, remove the entire added body structure prior to testing (the vehicle's unloaded vehicle weight as specified in S5 includes the weight of the added body structure).
S3.
S3. * * *
The revisions read as follows:
S2.
S3. * * *
S6.1 * * *
(d) Pitch: Measure the sill angle of the left front door sill and mark where the angle is measured.
(f) Support the vehicle off its suspension such that the left front door sill angle is within ±1 degree of that measured at the marked area in S6.1(d) and the vertical height difference of the two points marked in S6.1(e) is within ±5 mm of the vertical height difference determined in S6.1(e).